Ward Concrete Products Co. v. Los Angeles County Flood Control Dist.

• Decision Date: 08 April 1957
• Citation: 309 P.2d 546,149 Cal.App.2d 840
• Court: California Court of Appeals Court of Appeals
• Parties: WARD CONCRETE PRODUCTS, CO., a California corporation, Plaintiff and Respondent, v. LOS ANGELES COUNTY FLOOD CONTROL DISTRICT, County of Los Angeles, and City of Inglewood, Defendants, Los Angeles County Flood Control District, Appellant. Civ. 22030.

Page 546

309 P.2d 546

149 Cal.App.2d 840

WARD CONCRETE PRODUCTS, CO., a California corporation, Plaintiff and Respondent, v. LOS ANGELES COUNTY FLOOD CONTROL DISTRICT, County of Los Angeles, and City of Inglewood, Defendants Los Angeles County Flood Control District, Appellant.

Civ. 22030.

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

April 8, 1957.

Rehearing Denied May 2, 1957.

Hearing Denied June 4, 1957.

Harold W. Kennedy, County Counsel and Lloyd S. Davis, Deputy County Counsel, Los Angeles, for appellant.

Pat A. McCormick, Benjamin S. Parks and Floyd H. Norris, Los Angeles, for respondent.

FOX, Justice.

This is an appeal from a judgment awarding damages against defendant Los Angeles County Flood Control District, ¹ for injury to plaintiff's property caused by the overflow of surface waters.

Plaintiff is the lessee of improved real property on which it operates a plant for the manufacture of concrete building blocks. The finished blocks were stacked or stored on the premises. On the northern side of plaintiff's property, a street called Hyde Park Boulevard runs in an east-west direction, and then changes its course to proceed in a north-south direction along the western perimeter of plaintiff's premises. Adjacent to the south side of plaintiff's property and sloping in a generally western direction is a watercourse known as Centinela Creek, which, apart from occasional drainage of wastewaters from nearby streets, is normally dry, except during storm periods. In 1949 and in 1952, plaintiff's property was inundated during the rainy season by waters overflowing the banks of Centinela Creek. Plaintiff reported these incidents to the authorities of the city of Inglewood.

In 1952, the electorate authorized a bond issue to finance the construction of a storm drain for the purpose of controlling the flood waters of Centinela Creek. Defendant brought a condemnation proceeding for the acquisition of rights of way for the proposed drain. In the course of this action, defendant acquired a flood control easement across the land occupied by plaintiff, pursuant to a judgment by stipulation of plaintiff and its lessor. No compensation other than the construction of the storm drain was provided for in the stipulated judgment.

The Centinela storm drain was designated as Project 273 and was constructed by defendant Los Angeles County Flood Control District late in 1953 on an alignment approximately following the natural channel of Centinela Creek. The portion of the drain bordering plaintiff's property consisted of a box-type concrete enclosure whose internal dimensions were a width of 12 feet and a height of six feet six inches. Its designed capacity was 1,230 cubic feet per second. The horizontal top of the drain, which ran parallel to the ground, was several feet above the level of plaintiff's property.

As a part of the overall drainage program, defendant contemplated the construction of a storm drain to be known as the Hyde Park Drain (Project 271), which was scheduled to commence eight months after completion of the Centinela Creek Storm Drain (Project 273). In order to provide a future connection between the Centinela Creek and Hyde Park storm drains, defendant constructed a junction structure or chamber some 500 feet to the east of plaintiff's property. The junction structure was of a box-type design with a rounded open end, facing to the north and having a diameter of 78 inches. It was erected at a point where the Centinela Creek storm drain intersected and faced an open ditch. This ditch, commonly known as the Hyde Park Drain, was north of the open end or inlet to the junction structure and in the past had carried the storm waters from the Hyde Park watershed into Centinela Creek.

In the middle of September, 1953, Mr. Pebbles, a representative of the city of Inglewood communicated with H. E. Hedger, defendant's Chief Engineer, about his concern that the junction chamber 'will clog with trash this winter.' According to defendant's memorandum of the conversation, Hedger '[r]eminded him we were building 273 as designed by and for the City of Inglewood, but nevertheless agreed to have a check made to see if a temporary trash rack should be installed.' On November 25, 1953, a metal grill, somewhat resembling the bars of a prison cell, was installed over the opening to the junction structure. The grating consisted of a series of vertical one-inch iron pipes spaced about 7 inches apart and held together by three horizontal bars. The grate, apparently a temporary expedient, was fastened over the 78-inch opening with iron bolts. Neither Project 273 nor Project 271 included any grate over the opening in the original construction plans. Its installation was authorized by the defendant, presumably at the request of the city of Inglewood, for the purpose of blocking the entrance of large pieces of debris carried by floodwaters, and apparently also in furtherance of a general policy to safeguard against persons being swept into the drain.

In January, 1954, Inglewood was subjected to a rainstorm of moderate intensity. The waters flowing into the Hyde Park drainage area were filled with debris, some of which was pinned against the grating and blocked the entrance of the waters. As a result, the waters overflowed the banks of the ditch, and as they flowed west-ward along the north side of the Centinela Creek drain, they traversed plaintiff's property and caused minor damage. Plaintiff wrote defendant a letter of complaint and asked that remedial action be taken. Defendant also received other complaints. A crew was dispatched after the storm and the accumulated debris blocking the entrance was cleaned out. Mr. Dusenka, defendant's construction superintendent, admitted that the grating presented a hazard to the free flow of water into the drain.

On February 13, 1954, a heavy storm broke over Inglewood, sending large amounts of water into the Centinela and Hyde Park drainage areas. Defendant assigned a group of men to the junction structure to remove debris as it accumulated against the face of the grating. In the early stages, this crew managed to cope successfully with the job of keeping the grate clear. However, before noon, there occurred an upsurge of debris-laden water which pressed large quantities of flotsam against the grate. The workmen were unable to handle its removal and as the debris piled up in front of the grate the passage of water was impeded. As a result, the waters poured over the top of the junction structure and over the banks of the ditch, flooding plaintiff's land to a depth of several feet. As a result of the overflowing of the water, many thousands of concrete blocks were damaged and considerable sums were expended by plaintiff in cleaning up the premises.

Two days after plaintiff's land was flooded, defendant ordered the grating removed. Mr. Dusenka testified this was done '[t]o avoid a repetition of what happened there on the 13th.' He stated it was decided in his office that 'if we couldn't keep the debris off the grate * * * we thought the best thing is to take the grate off.' The grating remained off for the rest of the season and was never reaffixed.

There was a conflict in testimony as to what part the existing storm drain had played in causing plaintiff's property to be flooded. Plaintiff's expert, Mr. Shields, testified that had the waters not been prevented from entering the junction structure opening by virtue of the accumulation of debris on the grating, the flooding would not have occurred. He testified that the effect of the installation of the grate was to create a 'man-made dam.' Defendant's witnesses testified there was twice as much water flowing in the Hyde Park ditch as could have entered the Centinela drain even if no blockage by debris had occurred. They testified that because of the quantity of water flowing, plaintiff's premises would have been inundated to almost the extent of the maximum high-water level even if no drain had been constructed.

The trial court found in favor of plaintiff and awarded judgment for the damage sustained.

Plaintiff does not suggest that liability should be fastened on defendant on account of mere negligent operations on the part of its employees. It contends, in harmony with Bauer v. County of Ventura, 45 Cal.2d 276, 286, 289 P.2d 1, that the obstruction caused by the grating was a part of the construction or maintenance plan adopted by defendant, for which liability attaches when, as a result, a taking or damaging of private property for public use occurs. Thus the gravamen of plaintiff's action, as embodied in its pleadings and propounded during the trial, is predicated on the theory of inverse condemnation, which derives from Article I, sec. 14 of the California Constitution. ² 'The construction of the public improvement is a deliberate action of the state or its agency in furtherance of public purposes. If private property is damaged thereby the state or its agency must compensate the owner therefor [citations], whether the damage was intentional or the result of negligence on the part of the governmental agency [citations].' Clement v. State Reclamation Board, 35 Cal.2d 628, 641, 220 P.2d 897, 905.

It is plaintiff's position that defendant, during the construction of the storm drains, negligently installed and maintained a grating at the inlet to a storm drain, causing said inlet to become clogged with debris; that as a result of such blockages, waters which normally would flow into the inlet could not move along their natural course, accumulated in front of the grating and were diverted into an overflow over plaintiff's land; that this interference with the free flow of waters resulted in damage to plaintiff's land which otherwise would not have occurred.

It is plain that the evidence adduced fully sustains plaintiff's position and that the trial court correctly based its judgment on the...