Selby v. Sacramento County
| Decision Date | 07 February 1956 |
| Citation | 294 P.2d 508,139 Cal.App.2d 94 |
| Parties | Carl SELBY and Robert S. Gregory, Plaintiffs and Appellants, v. The COUNTY OF SACRAMENTO, a political subdivision of the State of California; Frank R. Elmer, Fred J. Bonetti, James H. Garlick, Ancil Hoffman and Walter C. Kelley, Supervisors of the County of Sacramento, Defendants and Respondents. Civ. 8643. |
| Court | California Court of Appeals Court of Appeals |
James H. Phillips, Sacramento, for appellants.
J. F. O'Shea, Dist. Atty. of Sacramento County, and Russell A. Harris, Sacramento, Floyd H. Pettit, Sacramento, of counsel, for respondents.
By their action plaintiffs sought damages for the loss of 18 horses. At the conclusion of their case, defendants' motion for nonsuit was granted, and this appeal followed the judgment which was subsequently therein entered.
Plaintiffs' original complaint alleged that the individually named defendants were the duly elected supervisors of the County of Sacramento; that the defendant county owned, operated and maintained a sewage maintenance district; that a sewage line of that district ran through pasture land owned by plaintiffs' lessor, upon which plaintiffs pastured horses; that defendants acting through their agents and employees, cut a hole in said sewage line thereby permitting sewage to escape and spread over the leased property; that as a result thereof the water and forage became contaminated and poisonous to horses; that as a proximate result of defendants' permitting the sewage to escape and spread over said land, the horses ate and drank the contaminated and poisoned forage and water, became ill and died; that at the time of so opening the sewer line defendants knew that horses were in the pasture and that sewage was dangerous and poisonous to them; and that plaintiffs had duly filed their claim for damages with said county as required by law and the same was rejected.
Defendants' answer admitted the cutting of the hole as alleged, but affirmatively alleged the same was an emergency measure; denied that sewage was discharged on the land; denied that the deaths of the horses were proximately caused by the eating and drinking of contaminated forage and water or that it was dangerous to them; and denied knowledge of the horses using the land for pasturage. Defendants' answer further admitted the filing of the claim as alleged. Upon the issues so joined, the cause proceeded to trial. During the course thereof the court, at its own suggestion and over defendants' objection, granted plaintiffs leave to amend their complaint by inserting in paragraph XI thereof the pertinent portions of Government Code, section 1953.
The evidence, viewed in the light most favorable to plaintiffs, Bridges v. County of Los Angeles, 131 Cal.App.2d 151, 280 P.2d 76, shows that for more than five years prior to the acts in question, plaintiff Selby had pastured horses on the property and that the plaintiff Gregory pastured a mare and a colt on the same land. When the horses in question were observed by plaintiffs on December 23 and 26, they appeared to be in good condition. On the evening of the later date, plaintiffs noticed sewage on a portion of the land. It came from a hole cut in a concrete pipe by employees of the defendant district, thence spread over the banks of a ditch which had been dug across the land. Neither plaintiff had notice that the ditch was to be dug or that the hole was to be cut in the line. The following day Selby called the county executive officer and informed him of the condition. On the 28th plaintiffs noticed that some of the horses were sick. On the 29th Gregory's mare died, and thereafter 18 horses either died or were destroyed within a week or ten days of becoming sick. All of the horses exhibited the same symptoms.
On December 30 employees of the sewage maintenance district were observed with shovels placing more dirt on the sides of the ditch where the sewage was overflowing. However, this did not prevent the sewage, after it reached the end of the ditch, from spreading out over the ground and settling in low places in the pasturage. Where the sewage so spread over the grass, it left a foam four to six inches high which, when dry, formed a sheet somewhat like a thick piece of cardboard. Three or four weeks later the county built a fence around the ditch and the area where the sewage had spread over the ground. About a month later Selby put 12 horses back in the pasture and none became sick. Witnesses who pastured horses on adjacent land, some of which were thoroughbreds, testified to having so used the land for several years, and although there was star thistle on their land, as there was on the pasturage of plaintiffs, none of their horses had ever had the symptoms which caused the deaths of the Selby horses.
The county engineer testified that four days prior to the time the pipe was cut, he had explored the property and had decided that should storm conditions continue and the City of Sacramento refuse to take district sewage through the city line, then it would be necessary to relieve the district line by cutting a hole therein and carrying sewage over the land in question by means of a ditch; that he knew that sewage would create bacteria from which diseases could be contracted; that he saw horses in the field but made no attempt to ascertain who owned them; and that he knew the owner of the land (a well-known Sacramento realtor and property owner) but was unable to contact him. The county sanitation officer also testified to bacteria in sewage.
Two veterinarians testified concerning star thistle disease and botulism poisoning, stating that the symptoms of the two diseases are somewhat similar, but their opinions that the cause of the horses' deaths was star thistle poisoning were neither uniform nor definite. One doctor stated that in his opinion star thistle disease was the cause. The other stated his opinion was given with the reservation that sewage could be a factor in rendering the star thistle toxic; however, they both testified that sewage was a suitable medium for the growth of the botulism organism which causes a toxic poisoning in animals; that the speed with which botulism affects an animal depends upon the severity of the attack and varies from a few hours to as much as two weeks; that botulism will cause death in horses in a much shorter period than will star thistle disease. One doctor testified that star thistle will affect an...
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...and county, including pipe lines and storm drains. (Bauer v. County of Ventura, 45 Cal.2d 276, 287, 289 P.2d 1; Selby v. County of Sacramento, 139 Cal.App.2d 94, 99, 294 P.2d 508.) Recent legislative enactments support the proposition that a city was intended to be included within the defin......
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