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District Court of Appeal, Third District, California.

STAUB v. MULLER (two cases).*

Civ. 5308, 5309.

Decided: September 27, 1935

Rich, Weis & Carlin, of Marysville (K. S. Mahon, of Marysville, of counsel), for appellant. A. B. Reynolds and S. H. Jones, both of Sacramento, for respondent.

The defendant has appealed from separate judgments which were rendered against him in two cases which were consolidated for the purpose of trial. Both suits were for damages for the partial destruction of alfalfa by flooding the land of plaintiff. The first case was for the loss of a portion of the crops of 1929 and 1930. The second complaint demands damages for the partial loss of the crop of 1931 from the same cause. Both pleadings asked for general damages to plaintiff's land and also for separate damages for the partial destruction of the alfalfa crops. The appellant contends that the measure of damages which was adopted by the court is erroneous for the reason that it is based on the market value of the crops destroyed, less the cost of production and marketing thereof; that the court failed to specifically find that the damages which were awarded were for the value of the crops as distinguished from the general damages to the premises by virtue of the flooding of the land, and that the findings and judgments are not supported by the evidence.

The plaintiff is the owner of forty acres of farming land in Sutter county, a portion of which has been devoted to the raising of alfalfa since 1926. The defendant owns forty acres of farming land adjacent to the plaintiff's property on the southerly side thereof. A drainage ditch or natural swale extended through both properties from north to south which for many years successfully drained the land of plaintiff. In 1927 the defendant closed the drainage ditch on his premises so as to obstruct and prevent the water which came from plaintiff's property from flowing therein in its natural course. On January 7, 1930, the court rendered judgment in a suit between these parties holding that plaintiff had a vested easement in the drainage ditch which is involved in these suits; that the defendant had wrongfully obstructed the ditch so as to prevent the water from flowing in its natural course therein from plaintiff's property, directing the defendant to forthwith remove all obstructions therefrom and enjoining him from interfering with plaintiff's free use thereof. November 1, 1930, a written stipulation between these parties was executed, authorizing the defendant conditionally to construct and maintain, in lieu of the drainage ditch which had been closed on the property of the defendant, another ditch adequate to serve the purposes of the natural ditch above referred to. This stipulation contained the following proviso: “It is further stipulated that upon the construction of said ditch along the north line of defendant's property in the manner herein prescribed and upon said defendant's providing drainage for the remainder of the distance to Ping Slough herein set forth that the judgment of this court may be modified in accordance with this stipulation, but that this must be done within thirty days from the date of this stipulation or else such stipulation shall be of no force and effect and shall be treated as if it had never been made.”

This alternative ditch was not constructed within the time specified, although it was subsequently constructed, but was permitted to be obstructed with vegetation and débris, so that it failed to adequately convey the waters flowing down the natural drainage ditch across defendant's property, and therefore resulted in overflowing some ten acres of plaintiff's alfalfa land so as to partially destroy her crops of alfalfa in the years 1929 to 1931, inclusive. The proceedings of the last-mentioned suit were received in evidence in these cases, for the limited purpose of showing the presence or absence of damages to plaintiff's property by virtue of the overflowing of her land.

These causes were tried by the court sitting without a jury. There is a serious conflict of evidence regarding the damages to plaintiff's property. Similar findings were adopted in both cases. The court found all of the issues in favor of the plaintiff, including the fact that “by reason of said acts of defendant, large quantities of water accumulated upon said lands of plaintiff during the years 1929 and 1930 and in each of said years the alfalfa growing on plaintiff's said lands was injured,” and that “by reason of said acts of defendant, plaintiff was damaged in the amount of $250 during the year 1929 and was damaged in the amount of $250 during the year 1930.” In the second suit the court found in the identical language above quoted that the plaintiff's alfalfa for the year 1931 was also injured and that she was thereby damaged in the sum of $250. In its conclusions of law in the last-mentioned cause the court inadvertently found that the plaintiff was entitled to judgment against the defendant for the sum of $300 instead of the ascertained sum of $250. Thereupon separate judgments were rendered, in the first case for the sum of $500, and in the second case, which was numbered 3964 in the superior court, for the sum of $300. From these judgments, the defendant has appealed.

While the record contains a conflict, there is ample evidence to support the findings and the judgments in these cases, except, as above pointed out, that there is a variance between the conclusions of law and the findings of fact in one of the cases with respect to the damages to plaintiff's crop sustained in the year 1931. In the last-mentioned case the court specifically found that the damages to plaintiff's crop sustained in the year 1931 was but the sum of $250, and the judgment in that case should therefore be reduced to conform to that finding.

The judgments are not uncertain with respect to the nature of the damages which have been awarded to the plaintiff. It is true that the court adopted general findings to the effect that all of the allegations of the complaints were true, which may be deemed to include the inference as contended by the appellant that the flooding of plaintiff's land resulted in general damages thereto. But the court specifically found that this flooding of plaintiff's land resulted in damage to her growing alfalfa crops for the years 1929 to 1931, inclusive, and that the amount of such damage aggregated the sum of $250 in each of said years. Since the evidence amply supports these findings that plaintiff's alfalfa crops were damaged to that extent in each of the years involved in these suits the defendant may not complain that a general finding with respect to damages to the freehold is not supported by specific findings.

A correct measure of damages was adopted by the court in these cases. It is a well-settled rule of law that the measure of damages for the partial destruction of planted crops as distinguished from natural pasturage is the local market value of the crop less the cost of producing and marketing the same, and not the difference between the rental value of the property with or without the destroyed portion of the crop. Strecker v. Gaul, 35 Cal. App. 619, 170 P. 646; Catlett v. Bennett, 37 Cal. App. 91, 173 P. 598; Miller & Lux, Inc., v. Pinelli, 84 Cal. App. 42, 47, 257 P. 573; 8 Cal. Jur. p. 819, § 76; 4 Sutherland on Damages (3d Ed.) p. 2997, § 1023; section 3333, Civ. Code.

There is ample evidence to sustain the amount of damages awarded to the plaintiff in each of these cases. The evidence clearly shows that this property was normally adapted to produce six crops of alfalfa each season. In 1928 and each season thereafter pending the time involved in this litigation, the plaintiff planted twenty or more acres of her land to alfalfa, and except for the portion thereof which was damaged or destroyed by the defendant's obstruction of the natural drainage ditch she produced an average of seven tons of alfalfa hay per acre each year. There is substantial evidence to show that some seven to ten acres of this alfalfa were damaged or destroyed in each of the years which are involved herein. There is satisfactory evidence that the market price of alfalfa in that vicinity during these years was from $12.50 to $15 per ton in shocks in the field. The evidence also shows the gross market price of alfalfa in the years of 1929 to 1931, inclusive, and the cost of producing, harvesting, and baling the same. Accepting the minimum number of acres of alfalfa which were damaged or destroyed and the minimum market price which is quoted, it is apparent that the damages awarded by the court are amply supported by the evidence.

The judgment in superior court case No. 3964 involving damages to plaintiff's alfalfa crop for the year 1931 is modified to conform to the finding of fact which was adopted by the court as the sum of $250. As so modified, this judgment is affirmed. The judgment in the other case is affirmed. Respondent will recover costs on each appeal.

Mr. Justice THOMPSON delivered the opinion of the court.

We concur: PULLEN, P. J.; PLUMMER, J.

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