Weaver v. Bishop

• Decision Date: 29 December 1988
• Docket Number: No. A039729,A039729
• Citation: 254 Cal.Rptr. 425,206 Cal.App.3d 1351
• Court: California Court of Appeals Court of Appeals
• Parties: Donald WEAVER et al., Plaintiffs, v. Richard L. BISHOP et al., Defendants and Respondents; National American Insurance Company of California, Intervenor and Appellant.

Page 425

254 Cal.Rptr. 425

206 Cal.App.3d 1351

Donald WEAVER et al., Plaintiffs, v. Richard L. BISHOP et al., Defendants and Respondents National American Insurance Company of California, Intervenor and Appellant.

No. A039729.

Court of Appeal, First District, Division 4, California.

Dec. 29, 1988.

Hyde & Drath, John M. Drath, Kathleen Umrein, Gerald M. Lachowicz, San Francisco, for intervenor and appellant.

Paul G. Carey, Dickenson, Peatman & Fogarty, Napa, for plaintiffs Weaver.

James R. Donahue, Michael M. McKone, Caulfield, Davies & Donahue, Sacramento, for defendants and respondents Bishop.

ANDERSON, Presiding Justice.

This action was originally brought by Donald and Virginia Weaver to recover damages for the erosion of their property in St. Helena. Named as defendants were respondents Richard and Wanda Bishop, who were alleged to have unreasonably altered the flow of Sulphur Springs Creek, causing damage to the Weavers' property on the opposite side of the creek. Appellant National American Insurance Company of California (NAIC) intervened in the action as subrogee of the Weavers and of the Peppertree Homeowners Association, of which the Weavers were members. According to the complaint in intervention, NAIC was subrogated to the claims against the Bishops because it had been obligated under an insurance policy to repair The case was tried before a jury. The evidence established that defendants placed riprap (boulders) along their banks, partly at the suggestion of Donald Weaver, to stop the ongoing washing away of the land along the creek bank. NAIC introduced expert testimony to the effect that this riprap had caused the washing away of land belonging to the Weavers and the homeowners' association.

damage to the subrogors' property. NAIC thus stood in the shoes of the Weavers, asserting that it had been forced to repair damage for which the Bishops were liable because of their alleged diversion of Sulphur Springs Creek.

NAIC sought to have the jury instructed that defendants were subject to liability, without regard to fault, if they obstructed and diverted the natural flow of the creek so as to damage the property of NAIC's subrogors. NAIC also sought an instruction directing the jury to find that defendants' conduct was the proximate cause of damage to NAIC's subrogors. The court refused these requests. It instructed the jury that liability depended on the reasonableness of the parties' conduct and that proximate cause was an issue for the jury to resolve.

By special verdict, the jury found that the conduct of defendants was reasonable, the conduct of NAIC's subrogors was unreasonable, and the conduct of NAIC's subrogors was a proximate cause of their damages. NAIC appeals from the resulting judgment for defendants, contending that the trial court erred by (1) making liability dependent on the reasonableness of the parties' conduct, and (2) refusing to take the issue of causation away from the jury.

ANALYSIS

The liability of a landowner for causing harm to another by diverting or obstructing water presents one of the most confusing areas of California law. The cases have always reflected considerable confusion as to the doctrinal basis and factual prerequisites for liability. The usual formula made liability dependent on the nature of the water causing the harm: " ' "First, one has no right to obstruct the flow onto his land of what are technically known as surface waters.... Second, one has the right to protect himself against flood waters ..., and for that purpose to obstruct their flow onto his land, and this even though such obstruction causes the water to flow onto the land of another.... Third, one may not obstruct or divert the flow of a natural watercourse." ' " (LeBrun v. Richards (1930) 210 Cal. 308, 314-315, 291 P. 825, quoting Horton v. Goodenough (1920) 184 Cal. 451, 453, 194 P. 34.) (Emphasis added.)

NAIC characterizes the present case as falling into the third category, i.e., obstruction or diversion of a natural watercourse. It contends that under the traditional rule governing watercourses, defendants are subject to "strict liability ... for diversion and obstruction of a natural stream." We question this description of the traditional rule. Disputes of the present type were traditionally subject to several rules. The starting point, to be sure, was the idea that " 'the diversion of water from its natural course resulting in damage to adjacent property is actionable.' " (Youngblood v. City of Los Angeles (1958) 160 Cal.App.2d 481, 487, 325 P.2d 587, quoting Bauer v. County of Ventura (1955) 45 Cal.2d 276, 283, 289 P.2d 1.) However this principle was itself promptly diverted from its seemingly straightforward course by several competing rules. A landowner was held entitled to make "improvements" to a watercourse, as by straightening, widening, or deepening it, even if the resulting increase in velocity harmed downstream lands and even if a different plan might have been available to avert the harm. (Archer v. City of Los Angeles (1941) 19 Cal.2d 19, 26, 119 P.2d 1; see Bauer v. County of Ventura, supra, 45 Cal.2d at p. 283, 289 P.2d 1; People v. Weaver (1983) 147 Cal.App.3d Supp. 23, 29, 197 Cal.Rptr. 521.) An upstream owner was also entitled to drain surface waters into a stream, provided they came from within its natural watershed, even if the resulting increase in volume and velocity exceeded the stream's carrying capacity. (San Gabriel v. C Club v. Los Angeles (1920) 182 Cal. 392, 402, 188 P. 554; Archer v. City of Los Angeles, supra, 19 Cal.2d at pp. 24-25, 26, 119 P.2d 1.) Most pertinent to the present analysis is the owner's right under the "common enemy" doctrine to build levees, bulkheads, dikes, or similar structures along the banks of a stream to confine or repel floodwater, even if the result was to flood downstream lands. (San Gabriel v. C. Club v. Los Angeles, supra, 182 Cal. at p. 400, 188 P. 554.) And this right extended not only to the prevention of inundation, but also to protecting banks from washing away. ¹ (See Archer v. City of Los Angeles, supra, 19 Cal.2d 19, 28, 119 P.2d 1; Barnes v. Marshall (1886) 68 Cal. 569, 571, 10 P. 115; San Gabriel v. C. Club v. Los Angeles, supra, 182 Cal. 392, 400, 188 P. 554; Weck v. L.A. County Flood Control Dist. (1947) 80 Cal.App.2d 182, 191, 181 P.2d 935.)

Assuming NAIC can overcome these obstacles, a question remains whether the traditional rules truly imposed strict liability, or whether they required some showing that the defendant's conduct was unreasonable or otherwise wrongful. NAIC cites no authority squarely holding that such liability is absolute; nor have we found any. In Salstrom v. Orleans Bar Gold Min. Co. (1908) 153 Cal. 551, 554-555, 96 P. 292, the court indicated that a miner is strictly liable for causing diversion of a stream by depositing in it large quantities of mining debris. Such conduct is hardly comparable to that of an owner who seeks to protect his or her banks from the depredations of an erosive stream. Likewise some cases may be read to follow a rule of strict liability where irrigation water artificially brought onto the defendant's land floods or percolates onto the plaintiff's land. (E.g., Kall v. Carruthers (1922) 59 Cal.App. 555, 562-563, 211 P. 43; see Parker v. Larsen (1890) 86 Cal. 236, 24 P. 989.) However, in Williams v. Pacific Coast Aggregates, Inc. (1954) 128 Cal.App.2d 777, 785, 276 P.2d 28, the court declined to follow those cases and refused to apply a strict liability rule where the failure of a dike system suddenly released a mass of flood waters onto the plaintiff's property. Without squarely addressing the issue discussed here, the court approved the trial court's adoption of a negligence theory. (Id., at pp. 782, 784, 276 P.2d 28; see also Tahan v. Thomas (1970) 7 Cal.App.3d 78, 81, 86 Cal.Rptr. 440 [under older authorities, right to obstruct flood water depends on "whether the steps taken are reasonable under all of the circumstances"]; Jones v. California Development Co. (1916) 173 Cal. 565, 574, 160 P. 823 ["underlying principle" where owner faces "extraordinary water conditions" is that "in such stress the land owner may use every reasonable precaution to avert injury"]; The Weinberg Co. v. Bixby (1921) 185 Cal. 87, 97, 196 P. 25 [defendants not liable if they "fend the intruding waters from their own premises in a reasonable and prudent manner"]; San Gabriel V.C. Club v. Los Angeles, supra, 182 Cal. at p. 401, 188 P. 554 [discussing reasonable use doctrine in context of otherwise permissible upstream drainage into watercourse]; but see Deckert v. County of Riverside (1981) 115 Cal.App.3d 885, 895-896, 171 Cal.Rptr. 865 [where surface waters from cross-defendant's land could only reach cross-complainants' land via a natural watercourse, "there is no way, ... [cross-defendant] could ever be held liable"].)

In any event the court below instructed the jury on the principles announced in Keys v. Romley (1966) 64 Cal.2d 396, 408-409, 50 Cal.Rptr. 273, 412 P.2d 529, where the Supreme Court qualified the erstwhile "civil law rule" applicable to surface waters. Under that rule a landowner was liable for any harm caused to neighboring owners by an alteration in the flow of surface waters across his or her land. The court in Keys declared that this strict rule must be tempered by a rule of "reasonable use," under which an owner modifying the flow of surface waters can successfully defend a claim for damages by showing that his conduct was reasonable and that of the plaintiff owner was unreasonable. (Id., at p. 409, 50 Cal.Rptr. 273, 412 P.2d 529; see Burrows v. State of California (1968) 260 Cal.App.2d 29, 32, 66 Cal.Rptr. 868.) Here the jury found that this situation obtained, and on that basis defendants were absolved of liability. We believe the trial court properly concluded that the "reasonable use" doctrine of Keys v. Romley applies where one landowner...