Van Zyl v. Spiegelberg

• Decision Date: 05 December 1969
• Citation: 82 Cal.Rptr. 689,2 Cal.App.3d 367
• Court: California Court of Appeals Court of Appeals
• Parties: Roelof VAN ZYL, Roelof Van Zyl, as Executor of the Will of Helena Van Zyl, Deceased, Plaintiff and Appellant, v. George SPIEGELBERG, Dorothy Spiegelberg, Defendants and Respondents. Civ. 25751.

Page 689

82 Cal.Rptr. 689

2 Cal.App.3d 367

Roelof VAN ZYL, Roelof Van Zyl, as Executor of the Will of Helena Van Zyl, Deceased, Plaintiff and Appellant, v. George SPIEGELBERG, Dorothy Spiegelberg, Defendants and Respondents.

Civ. 25751.

Court of Appeal, First District, Division 1, California.

Dec. 5, 1969.

Berns & Steinberg, San Jose, for appellant.

Hoge, Fenton, Jones & Appel, by John W. Appel, San Jose, for respondents.

MOLINARI, Presiding Justice.

This is an appeal by plaintiff from a judgment of nonsuit entered in favor of defendants.

Plaintiff and defendants own adjoining property in a mountainous and forested area near Boulder Creek. Defendants' lot is about one acre in size with its east boundary parallel to a road called West Road and its west boundary adjoining plaintiff's lot. Defendant's residence, garage and swimming pool are located on a level part of the property with the western portion of the lot sloping down toward plaintiff's property.

A stream or creek channel passes through defendants' lot in a general north-south direction. This channel originates above the lot to the north, comes down the mountain, and before it reaches defendants' property is fed by various drainage systems and passes through heavily wooded and overgrown areas. Waters flow through the channel from the first of the rainy season in the mountains, which normally commences in October, until June or July, when the channel becomes dry. During the rainy season storms are common. Because of the storms, the water in the channel can be transformed very quickly from a trickle to a rampaging stream.

Within the boundaries of defendant property a solid-fill driveway crosses the channel providing defendants with access to and from West Road. This fill driveway dams the channel with the exception of a two-foot diameter pipe which runs through to the driveway for the purpose of permitting the passage of water from the channel on the north side of the driveway to the continuation of the channel on the south side.

In the fall of 1962 defendants' property was partially flooded during the first rain-storm of that season. The water level was such that defendants summoned the Boulder Creek Fire Department for emergency assistance. The overflow was due, in part, to the sudden release of water from a building pad directly above defendants' property which occurred when the berm around that pad let go in several places. With respect to this occurrence there was conflicting testimony as to whether debris plugged the culvert and thereby contributed to the overflow. According to defendant George Spiegelberg, the water was coming through the creek very rapidly and through hydraulic action caused erosion of the stream bank. This erosion, in conjunction with the water released from the pad above defendants' property, caused the overflow. According to other testimony from a member of the Boulder Creek Fire Department debris clogging the driveway pipe impeded the flow of the stream.

During the remainder of the 1962--1963 rainy season and in subsequent seasons Spiegelberg and a neighbor undertook foot patrols along the banks of the channel above and below his property because of their awareness of the serious danger to themselves and absentee neighbors that could arise if the culvert became blocked by limbs or debris and overflowed.

In January 1967 heavy rain fell in the Boulder Creek area for two days prior to January 21 on which day, at about 7:30 a.m., a flooding of defendants' property occurred. A redwood log measuring 27 inches in length and 22 inches in diameter somehow came down stream and blocked defendants' 24-inch culvert, thereby damming and diverting the flow of the stream causing the water to overflow defendants' property. This water flowed across defendants' yard and down the slope below the yard onto plaintiff's property. Defendants made an emergency call to the Boulder Creek Fire Department, which responded almost immediately. In order to try to get the water back into the channel the building of a dam was attempted and a ditch was dug across the top of the driveway which prevented further overflow and kept the water in its old channel. While the firemen were so engaged, a large soil mass on the western edge of defendants' property, saturated by the heavy flow of diverted waters, tore loose and slid down the western slope of defendants' lot onto plaintiff's lot with sufficient force to cause heavy damage to his property, including the guest house, retaining wall, driveway, and two automobiles.

Plaintiff thereupon instituted the instant action for damages based on a complaint alleging a cause of action in two counts, one based on negligence and the other on nuisance. When the matter came on for trial by a jury defendants made a motion for nonsuit following the presentation of plaintiff's case. The motion was granted and this appeal ensued. Plaintiff contends that under applicable law sufficient evidence was presented below to support a verdict in his favor.

At the outset we note that the judgment of nonsuit operated as an adjudication upon the merits. (Code Civ.Proc., § 581c; ¹ Grable v. Martin, 193 Cal.App.2d 241, 242, 14 Cal.Rptr. 275.) Although the judgment of nonsuit is an adjudication upon the merits it is not treated on appeal like most appeals when it is the duty of the appellate court to indulge every reasonable intendment in favor of sustaining the trial court. The appropriate rule which the reviewing court must follow is that the court must view the evidence in the light most favorable to the appellant, must disregard all inconsistencies and draw only inferences from the evidence which can reasonably be drawn which are favorable to the appellant. (Golceff v. Sugarman, 36 Cal.2d 152, 153, 222 P.2d 665; Bartosh v. Banning, 251 Cal.App.2d 378, 383, 59 Cal.Rptr. 382.) It is only when the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff that the granting of a motion for nonsuit is warranted. (Raber v. Tumin, 36 Cal.2d 654, 656, 226 P.2d 574; McCafferty v. Gilbank, 249 Cal.App.2d 569, 571, 57 Cal.Rptr. 695.)

We also observe, initially, that although the complaint in the instant action purports to state two causes of action, that is, one based on nuisance and the other on negligence, it actually states one cause of action in two counts. The gist of each count is that defendants 'constructed and/or maintained' the subject driveway in such a manner as to obstruct the channel and divert the water from said channel onto plaintiff's property to plaintiff's damage. In the first count it is alleged that conduct constituted a private nuisance in the second, that such conduct constituted negligence in the construction, design and maintenance of said driveway. The complaint thus alleges only one cause of action because it alleges one primary right, that is, plaintiff's right to the unimpaired ownership and undisturbed enjoyment of his premises; a corresponding duty, that is, an obligation on the part of defendants not to interfere with that right; and a breach of that duty by defendants. (See Frost v. Witter, 132 Cal. 421, 426, 64 P. 705; Smith v. Minnesota Mut. Life Ins. Co., 86 Cal.App.2d 581, 590, 195 P.2d 457; Work v. County Nat. Bank etc. Co., 4 Cal.2d 532, 540, 51 P.2d 90.) Accordingly, what plaintiff seeks is to recover in damages under the same state of facts but under different theories of recovery, that is, private nuisance and negligence. In such a case there is but one cause of action. (See Shell v. Schmidt, 126 Cal.App.2d 279, 291, 272 P.2d 82.)

We note, further, Prosser's observation that there is confusion with respect to the relationship between nuisance and negligence: ² '(N)uisance is a field of tort liability, rather than a type of tortious conduct. It has reference to the interests invaded, to the damage as harm inflicted, and not to any particular kind of act or omission that has led to the invasion. The attempt frequently made to distinguish between nuisance and negligence, for example, is based upon an entirely mistaken emphasis Upon what the defendant has done rather than the result which has followed, and forgets completely the well established fact that negligence is merely one type of conduct which may give rise to a nuisance.' (Emphasis added; Prosser on Torts (3d ed. 1964) pp. 594--595; see also Rest., Torts, Scope and Introductory Note to ch. 40, at § 822.) Accordingly, nuisance is not a separate tort but a species of damage occasioned by conduct which is tortious because it falls into the usual categories of tort liability. (Prosser, supra, at p. 598; Rest., Torts, supra.)

Adverting to the cause of action in the instant case, we apprehend it to be the one for damages for obstructing the flow of a watercourse to the damage of plaintiff's property. This cause of action is predicated on two theories. The first is based on the law of water to the effect that a person may not, with impunity, obstruct or divert the flow of a natural watercourse to the damage of others' property, and that where a natural watercourse is obstructed, the diverter is under the continuing duty of providing proper facilities for handling the diverted waters so as to prevent damage to the property of others. (Smith v. City of Los Angeles, 66 Cal.App.2d 562, 572, 580, 583, 153 P.2d 69; Hellman etc. Bk. v. Southern Pac. Co., 190 Cal. 626, 634, 214 P. 46; Clement v. State Reclamation Board, 35 Cal.2d 628, 636, 220 P.2d 897; Smith v. East Bay Municipal Util. Dist., 122 Cal.App.2d 613, 622--623, 265 P.2d 610; Mitchell v. City of Santa Barbara, 48 Cal.App.2d 568, 572, 120 P.2d 131; Granone v. County of Los Angeles, 231 Cal.App.2d 629, 646, 42 Cal.Rptr. 34.) The second theory upon which plaintiff relies is that the diversion of the waters causing damage was caused by defendants' negligence in obstructing the subject channel. Such a diversion will...