Sturges v. Charles L. Harney, Inc.

• Decision Date: 19 November 1958
• Citation: 331 P.2d 1072,165 Cal.App.2d 306
• Parties: Albert B. STURGES, Ruth T. Sturges, Kenneth S. Peterson, Alice W. Peterson, Clara Mae Kurchinski, Anatole A. Arnold, Marza T. Arnold, Bert Feist, Inez R. Feist, Elie J. Tennenbaum and Stella Tennenbaum, Plaintiffs and Respondents, v. CHARLES L. HARNEY, INCO., a corporation, Charles L. Harney, an individual, doing business under the name and style of Charles L. Harney, Inc., a corporation, Defendants, CHARLES L. HARNEY, INC., a corporation, City and County of San Francisco, Cross-Defendant and Respondent. Civ. 18074.
• Court: California Court of Appeals Court of Appeals

Page 1072

331 P.2d 1072

165 Cal.App.2d 306

Albert B. STURGES, Ruth T. Sturges, Kenneth S. Peterson, Alice W. Peterson, Clara Mae Kurchinski, Anatole A. Arnold, Marza T. Arnold, Bert Feist, Inez R. Feist, Elie J. Tennenbaum and Stella Tennenbaum, Plaintiffs and Respondents, v. CHARLES L. HARNEY, INCO., a corporation, Charles L. Harney, an individual, doing business under the name and style of Charles L. Harney, Inc., a corporation, Defendants CHARLES L. HARNEY, INC., a corporation City and County of San Francisco, Cross-Defendant and Respondent.

Civ. 18074.

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

Nov. 19, 1958.

As Amended Dec. 8, 1958.

Hearing Denied Jan. 14, 1959.

Keith, Creede & Sedgwick, Scott Conley, San Francisco, for appellant.

Lenz, Jarvis, Miller & Decker, Hugh B. Miller, Charles W. Decker, San Francisco, for respondents Sturges and others.

Dion R. Holm, City Atty. George E. Baglin, Deputy City Atty., San Francisco, for respondent City and County of San Francisco.

KAUFMAN, Presiding Justice.

Plaintiffs brought this action for damages and for injunctive relief, against Charles L. Harney individually, and Charles L. Harney, Inc., a corporation. The defendant cross-complained against the City and County of San Francisco. The trial court entered an order striking the cross-complaint and entered a judgment of nonsuit as to Charles L. Harney, individually. After a jury trial, the court rendered judgment on the verdict in favor of the plaintiffs, awarding both compensatory and punitive damages. After further proceedings, without a jury, the trial court issued a mandatory injunction, ordering the defendant to take action to abate the nuisance. Defendant appeals, alleging errors as to: 1) the trial court's instructions to the jury; 2) the amount of compensatory damages other than property damages awarded; 3) the propriety of the injunctive relief; 4) the court's action in striking defendant's cross-complaint against the City and County of San Francisco.

The eleven plaintiffs are the owners of adjacent lots of improved land, Nos. 281, 283, 285, 287, 289, and 295 on Juanita Way in San Francisco. All of the plaintiffs, except Mr. and Mrs. Arnold (owners of 287) and Mrs. Kurchinski (owner of 281), live in their homes on the land in question. The plaintiffs' land is at the northern foot of Mt. Davidson. The land of the defendant corporation lies unhill immediately to the south of plaintiffs' properties. Before the defendant began his operations, the area above plaintiffs' properties was a gently sloping, heavily wooded hill. The water, brought from the upper slopes of Mt. Davidson by a natural ravine, spread into a fan shaped sheet flow over the slope. Drainage had been provided since 1932 by a ditch, about one foot deep and three feet wide, which followed the contour of the land behind plaintiffs' properties. This ditch, which was constructed by the original subdivider, drained into a central catch basin at the rear (south) of plaintiff Sturges' property. From the catch basin a six-inch terra cotta line ran to the city sewer on Juanita Way. These drainage provisions had been sufficient for the past 25 years.

In the summer of 1955, the defendant began its 'cut and fill' operation for the purpose of building a part of the Dalewood subdivision. The defendant cleared and excavated its property, creating a bench in the slope of the mountain, and then constructed an earth fill thereon. The fill was approximately 35 feet high and 460 feet long; its surface comprised 55 acres. The base or 'toe' of the fill was located five feet south of the rear property line of plaintiffs' properties, and covered the existing drainage ditch. The fill increased the steepness of the slope behind plaintiffs' properties to an almost perpendicular one. The east end of the fill obstructed the natural ravine and concentrated the flow of water into a narrow channel.

Defendant had made his application to do the grading work on April 29, 1955, representing that the maximum depth of the fill would be about 20 feet. The application was approved conditionally upon defendant's compliance with sections 308 and 4112 of the Building Code of the City and County of San Francisco. Under the terms of section 4112 (adopted in March 1954), fills of more than 15 feet are 'special grading areas'. For these, as a condition of issuance of a permit, the ordinance requires a written report of a civil engineer or soils engineer, substantiating the permanence and safety of the sections and certifying that the proposed grading will have no objectionable effect on the surrounding property, or health and safety. The ordinance further provides:

'Final treatment of surfaces. After the grading operations are completed and within 30 days thereafter, surface drainage facilities shall be created which will accumulate and channel all rainfall run-off into proper drainage courses. This shall be done in such a manner that erosion and disposition of sediment upon areas, where such will be objectionable, will be kept to the absolute minimum possible. Every effort shall be made to keep sediment from being carried to public streets or sewers.

'Where necessary to prevent erosion, planting will be required, as approved by the superintendent.'

'Disposal of surface and subsurface waters. Upon completion, excavations and fills shall in all cases be graded in such manner as to prevent the accumulation of storm waters or natural seepage. All surface or subsurface drainage existing, or developed by or through the grading or excavating shall be controlled by dikes, barriers, or drainage structures to prevent any silt or loose material from filling any existing drainage course or encroaching on any state highway, city street, or public or private property. All provisions to control natural drainage or flood waters shall meet with the approval of the director.

'Disposal of waters shall be made into accepted established water course, or into a public disposal system, and the final sections shall be such that they will not entail future maintenance by the city, except such maintenance as normally required to the public disposal system.'

The defendant testified that at the time the fill was constructed, his company was unfamiliar with the above ordinance. The civil engineer employed by the defendant to plan the subdivision, stated that he was never asked to plan drainage facilities, and never submitted the soils report required by the ordinance. The uncontroverted evidence established that defendant had never complied with these requirements. Throughout the trial and in the subsequent equity proceeding, defendant maintained (alternately) that his operation was not a 'special grading' area to which the Building Code applied; that the reports in question did not have to be filed until after the completion of construction, and that the water came, not from his property, but from the city's property on Mt. Davidson, and that dramage was the city's responsibility. Defendant's foreman testified that because of the loose material, the slope was steeper than the Building Code permitted. The defendant's construction superintendent testified that even though the map placed the toe of the fill five feet behind plaintiffs' property line, it was placed eight feet, thus making the slope even steeper.

On November 16, 1955, Sherman Duckel, the Director of Public Works of the City and County of San Francisco, wrote to the defendant, informed him of the complaints received from the residents of Juanita Way, and specifically called the defendant's attention to section 4112. The letter continued:

'Your soils engineer should furnish the Bureau of Building Inspection with detailed recommendations as to the installation of drainage facilities and embankment protection, which should be installed at once to prevent further erosion.'

On November 18, defendant answered as follows:

'We are not entirely familiar with what you have reference to when you state that the erosion of the embankment created by our grading operations has caused complaints, but we would appreciate the opportunity of going to the site with you and being advised just what is wrong with our operations.

'We have been informed by one of the Meyer Brothers, construction firm that built the homes of the property owners, that most of these places had catch basins built in the back yards because of the severe amount of drainage that have always run in there. Our representative advises us that there is far less water in the vicinity of their back yards today than ever before, because water that runs down from the property east of our property, is being carried off through out construction operations and down onto Juanita Way.'

On December 2, the Director of Public Works again wrote to the defendant, stating that a building inspector should be contacted to meet at the site with the defendant. Defendant answered in part as follows:

'We have discussed this matter with representatives of your building department over the telephone and, unfortunately, we were not able to understand exactly what they had in mind.

'Possibly if it isn't too much trouble, you could have the person who has an objection of some kind in mind submit in a note telling us just what is wrong.'

On December 22, the Director of Public Works again wrote to the defendant, stating that additional complaints had been received from the Juanita Way residents. The letter also stated:

'The Bureau of Building Inspection informs me that you have not met the code requirements in that you have not furnished the information regarding the drainage of this project, nor have you taken proper steps to protect adjoining properties.'

On December 30, the defendant replied that all of his representatives had unanimously concluded that the condition was due to the inadequacy of the catch basin and sewer system, that the water was not coming from his...