Shields v. Wondries

• Citation: 316 P.2d 9,154 Cal.App.2d 249
• Court: California Court of Appeals
• Decision Date: 07 October 1957
• Parties: Roberta Mary SHIELDS, Plaintiff and Appellant, v. Robert R. WONDRIES and Marylyn Wondries, Defendants and Respondents. Civ. 22221.

Page 9

316 P.2d 9

154 Cal.App.2d 249

Roberta Mary SHIELDS, Plaintiff and Appellant, v. Robert R. WONDRIES and Marylyn Wondries, Defendants and Respondents.

Civ. 22221.

District Court of Appeal, Second District, Division 2, California.

Oct. 7, 1957.

Hearing Denied Dec. 4, 1957.

Nicholas & Mack, A. F. Mack, Jr., Los Angeles, for appellant.

Parker, Stanbury, Reese & McGee, White McGee, Jr., Los Angeles, for respondents.

FOX, Justice.

Plaintiff appeals from a judgment denying her any relief for injury to her property caused by the seepage of water from defendants' land.

The properties here involved are adjacent residence lots in the hilly portion of the Flintridge area of Los Angeles County. Plaintiff's lot is east of defendants' which is on higher ground. Both lots front on Hampstead Road, which bounds the properties on the north. Beresford Way borders on defendants' lot on the west. Hampstead Road intersects Beresford Way at the northwest corner of defendants' property. In the other direction, Hampstead Road intersects Chevy Chase Drive, which forms the eastern boundary of plaintiff's property. Hampstead Road slopes generally to the east.

Plaintiff acquired her property in 1944. At the time of the purchase it was improved, inter alia, with flagged terraces and a masonry wall adjacent to the property line separating her property from that of defendants. Soon thereafter plainiff built a guest house which has been occupied by her since its completion as a residence. When plaintiff purchased her property the lot now owned by defendants was unimproved with any buildings.

In 1949 defendants purchased their property. Soon thereafter they made certain improvements thereon, including a residence, swimming pool, bath house, blacktop paving and additions to the private sewage system ¹ then on the property. These additions included a septic tank and a pumping pit. Soil was brought in to make fills and for gardening. Approximately 35% of the surface of defendants' property was covered by a hard surface.

For the purpose of showing the physical relationship and condition of the properties, we quote the following from the findings of the trial court: 'That prior to 1944, a cobblestone flume was built on the easterly edge of the property now owned by the defendants, which flume was parallel to and at the very edge of the westerly boundary of plaintiff's property and the said masonry wall. That when the said property of the defendants and the said property of the plaintiff were in an unimproved condition, there existed and had existed for many years a natural water course extending in a general easterly, or northeasterly, direction through the said property of the defendants and continuing into and upon the said property of the plaintiff. That the downward gradient of the said natural water course was generally from the west to east or from the southwest to northeast. That except for the said cobblestone flume, surface waters flowing on the defendants' property would have been dammed by the wall either southerly or northerly along the wall, except to the extent that such surface waters might have seeped into the ground. That with the flume in place said surface waters flowed and continued to flow across the property of the defendants onto Hampstead Road, a highway that runs along the northerly side of the properties of the plaintiff and and defendants * * *.'

At the time defendants purchased their property two drainage pipes had been laid by the County under a culvert across Beresford Way. These pipes extended onto the west side of defendants' property. They collected surface water west of Beresford Way and discharged it over the westerly portion of defendants' property and in the direction of plaintiff's property, where, however, the flow was interrupted by the cobblestone flume and plaintiff's wall. In order to handle this drainage problem defendants consulted E. E. Mitchell, a civil engineer and drainage expert. As a result, a catch basin was built on defendants' property to take the flow from the southerly pipe. Some time later the County sealed off this conduit, diverting its flow from defendants' property and into Hampstead Road. The northerly conduit was extended by means of an 18 inch pipe that terminated in a concrete retaining wall immediately north of the bathhouse at a point where the blacktop joins a retaining wall. Discharge from this 18 inch pipe flows over the blacktopping to the flume and is carried by the flume to Hampstead Road. Another pipe was installed from the catch basin to the northerly pipe so that the water received by the catch basin flowed into it and was carried off by the flume after being discharged on the blacktop.

It was in the summer of 1951 that defendants began the development of their property. In the following December, plaintiff observed seepage in the area of her property immediately east of her westerly line. During January 1952, heavy rains caused the area behind plaintiff's house to be inundated, the water to seep up through the floor and damage her furnishings. This was, however, an unusually heavy rainfall. Following this incident a written protest was made to defendants regarding the damage assertedly caused to plaintiff's property by defendants' installations.

On several occasions after the addition to defendants' sewerage system the pumping pit failed to function properly and 'on such occasions' the court found, 'the defendants negligently permitted sewage effluent to flow into said cobblestone flume' and caused offensive stench. For this damage plaintiff was awarded $1,000. Also, defendants were enjoined from permitting the discharge of any sewage effluent upon or near said flume. The judgment required the defendants to pave the flume in such a manner as to render it reasonably impervious to surface water and other surface effluents. This portion of the judgment is not under attack by any of the parties.

Plaintiff's exhibit 49 shows the amount of water defendants purchased per month from the Valley Water Company for use on their property from the beginning of 1952 to May, 1955. It varies from a low of 1,000 cubic feet (approximately 7,500 gallons) for December, 1952, to a high of 15,200 cubic feet (approximately 114,000 gallons) in July, 1954, and shows a monthly average of 5,400 cubic feet (40,500 gallons). For the summer months (June, July, August and September) the average monthly use was 9,100 cubic feet (approximately 68,300 gallons). Equating exhibit 49 in terms of the daily average in gallons of water consumed on defendants' premises for the three year period 1952 to 1954, inclusive, we get the following approximate results: 1,260 gallons per day in 1952, 1,390 in 1953, and 1,500 in 1954. For the six months' period from May to October, 1954, defendants used an average of 2,154 gallons per day; in July of that period they averaged 3,700 gallons per day.

There was testimony on behalf of plaintiff that seepage of water onto her property from defendants' land had created substantial damage, viz., separation and displacement cracks had appeared in plaintiff's masonry wall, which was adjacent to the western property line, running parallel to the cobblestone drain; her flagstone terrace suffered disintegration with settlement of steps or cement treads; and cracks occurred in the sides and in the foundation of the lily pond with disintegration also occurring in the adjacent planters.

The trial court found: 'That except as otherwise found in paragraph VI [relating to the discharge of sewage effluent] of the Findings, it is not true that the defendants, or either of them, were negligent or careless with respect to the construction, placing, maintenance or use of any of the improvements, installations or structures on their said property; but it is true, except as otherwise...