Southern Pacific Co. v. Proebstel

• Decision Date: 30 June 1944
• Docket Number: Civil 4574
• Citation: 61 Ariz. 412,150 P.2d 81
• Parties: SOUTHERN PACIFIC COMPANY, a Corporation, Appellant, v. CLOTILDA PROEBSTEL, Appellee
• Court: Arizona Supreme Court

150 P.2d 81

61 Ariz. 412

SOUTHERN PACIFIC COMPANY, a Corporation, Appellant, v. CLOTILDA PROEBSTEL, Appellee

Civil No. 4574

Supreme Court of Arizona

June 30, 1944

APPEAL from a judgment of the Superior Court of the County of Yuma. Henry C. Kelly, Judge. Reversed and remanded.

Messrs Knapp, Boyle & Thompson, of Tucson, Arizona, and Mr. Lawrence L. Howe, of San Francisco, California, for Appellant.

Mr Glenn Copple and Mr. Wm. H. Westover, of Yuma, Arizona, for Appellee.

OPINION

FAIRES, Superior Judge.

Appellant, Southern Pacific Company, hereinafter called defendant, appeals from a money judgment rendered against it in the Superior Court of Yuma County in favor of appellee Clotilda Proebstel, hereinafter called plaintiff, for land and crop damages caused by a flood in what is known as Coyote Wash during August of 1941. The action was tried before a jury and at the close of evidence defendant moved for an instructed verdict in its favor, which motion was denied, and thereafter the jury returned its verdict for the plaintiff. Following the entry of judgment for plaintiff the defendant filed its motions to set aside the verdict and for judgment in its favor, together with separate motion for new trial, which motions were denied, following which this appeal was taken.

Plaintiff alleged in her amended complaint that on or about the 25th day of July, 1941, defendant constructed a large ditch south of its line of railroad near Wellton, Arizona, extending about one mile in length from a point on an arroyo commonly known as Coyote Wash south of its railroad, the effect of which so changed the drainage of the surrounding country as to increase the flow of Coyote Wash as it ran near and through her land whenever a heavy rain storm would occur; that as a result of said construction by the defendant far greater quantities of water than would normally flow upon the land of the plaintiff from the wash would be precipitated upon her land. Plaintiff also alleges that subsequent to this construction a great torrent of water swept down Coyote Wash and upon and over her land and destroyed the crops, and so injuring her land as to require re-grading, and that but for the ditch so constructed by defendant none of such damage would have occurred.

Plaintiff's land lies approximately one mile north of Wellton, which town, lying east of Yuma, is intersected by the east-west mainline tracks of defendant, and the paralleling Yuma-Phoenix highway. Plaintiff's land is cut through approximately from south to north by the natural channel of Coyote Wash, which has a general fall of twenty-five feet to the mile. This wash serves as a natural drain for the watershed to the south of Wellton, which embraces 302 square miles. Storm and flood waters of this watershed drain into Coyote Wash, which as a natural watercourse receives and then conducts them in a general northerly direction to Wellton, where they pass under the railroad bridge; thence through a 170 foot highway ditch, and still continuing northerly are then discharged upon plaintiff's land. Coyote Wash extends a distance of approximately 24 miles south of Wellton, and its continuity as a natural watercourse can be followed. Its width varies from 100 to 400 feet, and its depth ranges from three to eight feet. At a point on Coyote Wash just above her cultivated land plaintiff, several years ago, constructed an unreenforced earthwork dike, extending from bank to bank, for the purpose of forcing the waters to flow to the west and by-pass her farm. At least on one occasion prior to the constructing of defendant's dike, and before the litigated flood, her dike had failed to withstand the waters of Coyote Wash, with resulting damage to her downstream farming land. As rebuilt just before the flood, over which this suit arose, plaintiff's dike was in an unfinished state and, according to some of her own witnesses, had not been adequately designed or constructed.

Defendant's dike or embankment, built in July of 1941, is 3,517 feet in length and varies from five to eight feet in height. The southerly tip is more than a mile south of Wellton and from such point it extends northeasterly to a point on the westerly bank of the main channel of Coyote Wash to a point approximately two miles upstream from plaintiff's dike. In constructing this dike defendant intercepts numerous channels, all of which, within a distance of two miles upstream, stem in a northwesterly direction from Coyote Wash.

On August 9, 1941, following the completion of defendant's dike there was a heavy rainfall in the area south of Wellton, resulting in Coyote Wash reaching flood stage. Defendant's dike intercepted and cast back into Coyote Wash such part of its flow as had escaped from the main channel. When the flood waters of Coyote Wash reached plaintiff's own dike it collapsed and allowed the stream water to come upon plaintiff's land with resulting damage.

This litigated flood was one of a total of three described by the witnesses; the first and largest of these three floods occurred in 1931. While there was conflict in the testimony as to the exact date of the second flood, it occurred about December, 1940, or January-February, 1941.

Defendant does not challenge the amount of the verdict and judgment but confines its attack to the basic proposition that plaintiff failed to establish breach of duty on the part of the defendant, such as would render it liable in damages to the plaintiff.

The exact question here involved in this case is new in this state, and the water law in Arizona furnishes no precedent for this appeal. This court has never been called upon to adjudicate the character of water escaping through or over the banks of a stream, nor to set out what, if any, defensive steps may be employed in halting its invasion. Insofar as the water law of Arizona is concerned, the prohibitions found in the case adjudicated are against: a. The obstruction of surface waters without providing sufficient outlet and b. The accumulation of surface waters in large quantities, followed by its conduct through an artificial ditch in a direction where it never before flowed to ultimate discharge upon the land of another.

It is the defendant's position that the waters in Coyote Wash were flood waters, while it is the contention of plaintiff that they were surface waters. Hence, the vital question for determination here is the character of these waters involved in this litigation. The terms "surface water," "stream water," and "flood water" each differs in fact and has a different significance in law. Sam Gabriel, etc., v. Los Angeles County, 182 Cal. 392, 188 P. 554, 9 A.L.R. 1200 (cited with approval in City of Globe v. Shute, 22 Ariz. 280, 196 P. 1024, 1027), in which latter case the Court said:

"The distinction between the present case and the decisions cited by counsel for the municipality is well defined. None of these decisions were concerned with the diversion of the waters of a natural stream by means of an insufficiently constructed artificial channel or waterway. They are all cases concerning surface waters."

The distinguishing physical characteristics are aptly defined in Mogle et al. v. Moore et al., 16 Cal.2d 1, 104 P.2d 785, 789.

"Surface waters are defined as waters falling upon and naturally spreading over lands. They may come from seasonal rains, melting snows, swamps or springs, or from all of them. Surface waters consist of surface drainage falling on or flowing from and over a tract or tracts of land before such waters have found their way into a natural watercourse. 26 Cal. Jur. p. 279, and cases cited."

While stream waters are not involved in this appeal, it will illuminate the discussion to quote the definition found in Mogle et al v. Moore et al., supra:

" A stream is a water course having a source and terminus, banks and channel, through which waters flow, at least periodically. Streams usually empty into other streams, lakes, or the ocean, but a stream does not lose its character as a watercourse even though it may break up and disappear. (Citing case.) Streams are usually formed by surface waters gathering together in one channel and flowing therein. The waters then lose their character as surface waters and become stream waters. (Citing cases.) As we have observed, a continuous flow of water is not necessary to constitute a stream and its waters stream waters. (Citing cases.)"

Flood waters are thus correctly described in 26 Cal. Jur. 280, supra:

"Flood waters are distinguished from surface waters by the fact that the former have broken away from a stream, while the latter have not yet become part of a watercourse. The term 'flood waters' is used to indicate waters which escape from a watercourse in great volume and flow over adjoining lands in no regular channel, though the fact that such errant waters make for themselves a temporary channel or follow some natural channel, gully or depression does not affect their character as flood waters or give to the course which they follow the character of a natural watercourse."

It is thoroughly settled that flood waters escaping from a stream are not surface waters and do not lose their character as flood waters while flowing wild over the county. In Horton v. Goodenough, 184 Cal. 451, 194 P. 34, 37, it was said:

" The waters are plainly flood waters breaking out of their channel and running wild, and as such each property owner threatened has the right to protect himself against them as best he can, under the authority of the decisions we have already cited, the most notable of which is Lamb v. Reclamation District, supra, (73 Cal. [125] 126, 14 P. 625, 2 Am. St. Rep. 775). The waters are not surface waters in the technical sense, for they...