Sheffet v. County of Los Angeles

• Decision Date: 21 January 1970
• Citation: 3 Cal.App.3d 720,84 Cal.Rptr. 11
• Court: California Court of Appeals Court of Appeals
• Parties: David SHEFFET, Plaintiff and Respondent, v. COUNTY OF LOS ANGELES et al., Defendants and Appellants. Civ. 32487.

Page 11

84 Cal.Rptr. 11

3 Cal.App.3d 720

David SHEFFET, Plaintiff and Respondent, v. COUNTY OF LOS ANGELES et al., Defendants and Appellants.

Civ. 32487.

Court of Appeal, Second District, Division 5, California.

Jan. 21, 1970.

Hearing Denied March 19, 1970.

Darby, Fleming, Anderson & Hager, Pasadena, and Donald F. Yokaitis, Pasadena, for plaintiff and respondent.

John D. Maharg, County Counsel, and M. L. Lathrop, Deputy County Counsel, for defendant and appellant County of Los Angeles.

Garrick & Lane and James C. Foster for defendant and appellant Gibco Construction, Inc.

STEPHENS, Acting Presiding Justice.

This is an appeal by defendant County of Los Angeles (County) and defendant Gibco Construction, Inc. (Gibco) from a judgment of the Superior Court of Los Angeles County in favor of plaintiff and against defendants. The action was brought by plaintiff, as an owner of real property, against defendants for damages caused by surface waters and mud draining across and onto plaintiff's property and into the drainage ditch on plaintiff's property from the land and streets owned by the defendants; for an injunction ordering defendants to refrain from draining surface waters across plaintiff's land; and for an injunction ordering defendants to take corrective steps to prevent the draining of surface waters onto plaintiff's land and in plaintiff's drainage ditch in excess of the existing prescriptive rights of defendants. After a court trial, plaintiff was awarded $50 in damages against both defendants, ¹ and the court issued the following injunction:

'Defendants Gibco Construction, Inc., a corporation, and County of Los Angeles, and each of them, are enjoined from in any manner discharging onto the real property of Plaintiff or within the ditch located upon Plaintiff's property, in excess of Defendants' existing prescriptive rights, the surface waters which collect from time to time on said Defendants' lands, walks, curbs, drives, gutters and streets, and further, said Defendants, and each of them, are hereby ordered, directed and required to take corrective steps within 240 days hereto to prevent the said draining of surface waters onto Plaintiff's land and upon and in Plaintiff's ditch in excess of Defendants' existing prescriptive rights.'

Plaintiff has owned and resided on the real property known as 396 East Mendocino Street in Altadena, California since 1952. Prior to March 1965, the property located across the street from plaintiff was higher and unimproved land. In March of 1965, defendant Gibco commenced construction of a subdivision on the property, then known as Tract No. 29892. The property was cleared of trees and brush in March of 1965, and grading was commenced during the months of April and May 1965. Plans for the subdivision were prepared by engineers employed by defendant Gibco, and were approved by defendant County. Contained in the plans were two one-block-long streets: Deodara (running east and west) and Oliveras (running north and south). After they had been completed and had passed final inspection, they were dedicated as public highways and accepted by defendant County 'for all public purposes and liability attaching thereto.' Due to this construction, the natural area available for absorption of surface waters on the tract was reduced by 51.4 percent. This reduction, combined with the design of Oliveras and Deodara Streets, created an increased and different pattern of surface-flow from the tract, concentrating the run-off to and down Oliveras, which dead-ended at its intersection with Mendocino immediately north of plaintiff's easterly driveway apron. Prior to November 1965, plaintiff had experienced no flow of surface water onto his property from across the street. In various rainstorms between 1965 and December 1966, water and mud from the tract flowed onto and flooded plaintiff's property, via the overflow from Oliveras, across Mendocino and down the driveway on the east side of plaintiff's property, as well as mud and water from the tract being deposited in the drainage ditch on the west side of his land. Plaintiff made several complaints to the County and Gibco, but neither defendant took any steps to alleviate the problem of water and mud flowing from the tract.

On this appeal from the judgment, defendants raise five contentions: (1) the plaintiff did not act reasonably in protecting his property; (2) the injunction is vague, confusing, and incapable of being carried out; (3) an injunction does not lie where plaintiff has only suffered nominal damages; (4) plaintiff's drainage ditch is a natural watercourse and defendants may properly discharge surface waters into it; (5) by statute, defendant County is immune from liability in this case.

California courts follow a modified rule of civil law in determining the rights and liabilities of adjoining landowners with respect to the flow of surface waters. ² As stated in Keys v. Romley, 64 Cal.2d 396, 409, 50 Cal.Rptr. 273, 280, 412 P.2d 529, 536: 'No party, whether an upper or a lower landowner, may act arbitrarily and unreasonably in his relations with other landowners and still be immunized from all liability. ( ) It is therefore incumbent upon every person to take reasonable care in using his property to avoid injury to adjacent property through the flow of surface waters. Failure to exercise reasonable care may result in liability by an upper to a lower landowner. It is equally the duty of any person threatened with injury to his property by the flow of surface waters to take reasonable precautions to avoid or reduce any actual or potential injury. ( ) If the actions of both the upper and lower landowners are reasonable, necessary, and generally in accord with the foregoing, then the injury must necessarily be borne by the upper landowner who changes a natural system of drainage, in accordance with our traditional civil law rule.'

Thus, as the court in Burrows v. State of California, 260 Cal.App.2d 29, 32--33, 66 Cal.Rptr. 868 pointed out, Keys laid down three express rules: (1) if the upper owner is reasonable and the lower owner is unreasonable, the upper owner wins; (2) if the upper owner is unreasonable and the lower owner is reasonable, the lower owner wins; (3) if both the upper and lower owners are reasonable, the lower owner wins. ³

Here, defendants argue that plaintiff failed to take any reasonable precautions to protect his property from the flow of water and mud. The trial court expressly rejected this contention. ⁴ Assuming that the rule of Keys is applicable here, unless there is no substantial evidence to support this finding, we are bound by the decision of the trial court. (Mantonya v. Bratlie, 33 Cal.2d 120, 128, 199 P.2d 677.)

Defendants contend that plaintiff acted unreasonably because he failed to take any affirmative action to protect his property and never consulted any person or firm with respect to alterations in his property which might protect it from the flow of surface waters. Defendants would have us read Keys as necessarily requiring affirmative action on the part of a lower landowner before he can complain of unreasonable surface water diversion by an upper landowner. However, such an interpretation of Keys would in many instances place an unreasonable burden on the lower landowner. All that he is required to do is act reasonably. Keys recognizes that 'New Jersey, which had been one of the pioneers in adopting of the common enemy doctrine and had applied it with considerable strictness, abandoned the old rule in Armstrong v. Francis Corp. (1956) 20 N.J. 320, 120 A.2d 4, 59 A.L.R.2d 413,' and adopted a rule of reasonable use. It must be noted that in Francis, the cost of protecting the lower riparian owner's property was required to be borne by the upper owner. Thus, though California has had the very antithesis of the common-enemy rule relating to surface waters, and still does, except as modified by the Keys rule of reasonable use, it is not suggested in Keys that where additional burdens and protective measures are required to be taken by a lower owner, the cost thereof should not be borne by the party permitted to impose them. ⁵ The court recognized also that the lower owner's cause of action included the totality of the injury, past, present, and future (64 Cal.2d p. 411, 50 Cal.Rptr. 273, 412 P.2d 529.)

The companion case of Keys is Pagliotti v. Acquistapace, 64 Cal.2d 873, 50 Cal.Rptr. 282, 412 P.2d 538, in which the modified rule of Keys was applied. There, two private adjoining landowners each sought to enjoin the other. The lower owner sought to enjoin the upper from diverting surface waters at an increased rate and volume through a swale crossing the lower owner's property 'in a concentrated manner.' The upper owner sought to enjoin the maintenance by the lower owner of a dam obstructing the diversion of surface waters in the manner being done. The court held that if the upper owner acted reasonably and the resultant change in the manner of use of his natural right to expulsion of surface waters caused no appreciable damage to the lower owner, the upper owner could, with immunity to liability, modify the natural disposition of such waters. The trial court had required the upper owner to construct and maintain a drainage ditch across the lower land. It must have concluded that such a ditch caused No appreciable damage, but cost of construction and maintenance was to be borne by the upper owner. Such a result, though a modification or extension of the rule of Francis, was in conformity with the rationale of that case, and confirms our analysis. To the same effect is Inns v. San Juan Unified Sch. Dist., 222 Cal.App.2d 174, 177, 34 Cal.Rptr. 903, 906, citing and approving the statement of the trial court that 'An upper land owner has a natural easement or servitude which permits him to discharge surface water through the drainage mechanism of a natural swale, hollow or...