SPAULDING v. CAMERON

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

SPAULDING v. CAMERON.

Civ. 17910.

Decided: June 04, 1951

Martin H. Easton, Los Angeles, Overton, Lyman, Prince & Vermille and Donald H. Ford, Los Angeles, of counsel, for appellant. Samuel A. Rosenthal, Los Angeles, Prinzmetal & Grant, Beverly Hills, Leonard G. Ratner, Los Angeles, of counsel, for respondent.

From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover damages resulting to plaintiff's property because of defendant's negligent excavations upon his own property, defendant appeals.

Facts: Plaintiff owned and occupied a lot situated at 1454 San Ysidro Drive, Los Angeles. Approximately across the street from plaintiff is another house and lot known as the Griffin property. These two residences are the last improved properties at the head of the street which ends at the outlet of Pea Vine canyon. The street ends at the boundaries of the two properties, and the canyon is fenced off from the road by a heavy wire fence and an iron gate. This fence and gate are located on what is known as the Bingham property. The Bingham property is at the bottom of Pea Vine canyon and separates that of defendant Cameron from plaintiff Spaulding's house and lot by some 300 feet. The fence and gate created an effective dam during the period involved in this litigation by catching debris and mud which were washed against it.

Plaintiff's property is at the bottom of the canyon and is on the easterly side, the slope behind it being extremely steep. The Bingham property adjacent to it on the west takes up nearly all of the bottom land. Defendant's property line coincides with the Bingham line on the westerly hillside where the grade leads up gradually to the hills above, increasing the slope as the top is reached. The bottomland or canyon floor includes the natural water course which has flowed for many years and escapes in the city street within a foot or two of plaintiff's curb line.

Defendant is the owner of approximately 30 acres of land on the westerly slope of Pea Vine canyon which originally embraced three knolls. This property continues on up to the upper or top flat area and down the next slope. Commencing in May, 1946, with a plan to develop this property and possibly subdivide, defendant constructed a road into his property being a reconstruction and extension of Beverly Estates Drive. To make a flat area suitable for building, the three knolls mentioned were leveled off at the top and approximately one fifth of the excess dirt pushed over the east side, forming cast-over slopes of a wedge or cone shape. The side of the wedges were buttressed against the shoulders of the three knolls. In leveling off the slopes, the procedure was to create a drainage away from plaintiff's side towards the center or west to the extent that the flat area was widened and the natural drainage into Pea Vine canyon was reduced because of the fact that from this new line at the top of the canyon lessening the width of the canyon, all water drainage was diverted and moved by constructed drainage into an entirely new watershed.

The work commenced in May of 1946 was completed by the end of October. A shoulder was made along the road at the easterly edge of defendant's property to divert water away from Pea Vine canyon and down into the other watershed. A contract had been let for the finishing of the operation by the construction of bulkheads and baffles at the top of each slope. This work had not been finished before heavy November rains started.

During the month of November, 1946, the are suffered the second heaviest rainfall for the month of November ever recorded. As a result the flood waters which were dirty reached an elevation of about 26 inches on the portion of plaintiff's property nearest the streets.

As a result plaintiff's property suffered damage in the amount of $1,221.65; the cost of cleaning rugs and drapes amounted to $72.25; $100 was necessary for replacing shrubs; a car stored in plaintiff's garage was damaged in the sum of $415.39; and clothing belonging to plaintiff's daughter stored in plaintiff's garage was damaged in the amount of $923. The trial court found that plaintiff's property was depreciated in the amount of $24,000, and gave judgment in favor of plaintiff for a total of the foregoing sums, $26,732.29, and ordered defendant to remove deposits of dirt from his property or in lieu thereof to ‘place protective structures around said loose dirt in such manner that the property of the plaintiff will not be endangered or threatened by the existence of deposits of loose dirt.’

The judgment was predicated upon two causes of action, (1) that defendant's negligence in moving the dirt on his property had resulted in the damage to plaintiff, and (2) that defendant was absolutely liable for the manner in which he used his property causing damage to plaintiff.

Questions: First: War there substantial evidence to sustain the trial court's finding that defendant used his property in a negligent manner thus causing damage to plaintiff?

Yes. It is the general rule that the owner of real property is liable for the negligent use thereof which causes injury to another. (Sec. 3514, Civil Code.) In the present case the evidence disclosed that in March, 1946, defendant began to level off the top of his hillside property; that he rented bulldozers and other equipment and proceeded to push loose earth and debris over the sides onto the slopes of his property; that these operations continued for a period of six months under his direction and control; that the bushes, trees and underbrush growing on the sides of the hills were not removed in the areas where the dirt was dumped; that the natural earth beneath the fills was no plowed up or scarified to make possible a closer adhesion with the loose dirt of the fills; that no effort was made to solidify or compact the fills thus created; that no jetting, which consists of forcing streams of water into the loose dirt, was carried on when the dirt was deposited; nor was bithulitic material added to the dirt for greater cohesion. The evidence also showed that a sheepsfoot roller, which is an iron roller with short iron pegs attached, specifically designed for the purpose of compacting loose fills of earth, was not used to go over the layers of dirt, although such a roller was available, but that the only pressure applied to the fills was the weight of the bulldozers passing over the upper edge to deposit additional dirt.

The evidence disclosed that defendant was warned during the course of operation by an engineer and by a letter from a lower property owner that such methods might result in damage to lower property owners after a rainfall; that after damage had resulted to plaintiff's property defendant attempted by jetting, by planting ice plant and small trees and by the erection of barricades to protect plaintiff's property.

In addition expert witnesses testified that the proper procedure for constructing such fills requires, (1) clearing the surface of the slope upon which the fill is to rest of all vegetable matter and scarifying such surface to effect a bond with the fill, (2) laying down the fill in layers of 6 to 9 inches, (3) compacting such layers by the use of a sheepsfoot roller or other compacting equipment, and (4) adding moisture to the layers at the time they are deposited by the process of jetting.

From such evidence the trial court was justified in concluding that defendant was negligent in constructing the fills on his property and that his negligence was the proximate cause of the damage to plaintiff's property.

There is no merit in defendant's contention that plaintiff's expert witnesses should not be considered. It is the rule that if, as in the instant case, there is evidence to sustain the trial court's finding that witnesses are qualified as experts, the weight to be given to their testimony lies within the sound discretion of the trial court. In the present case there is ample evidence to establish the qualifications as experts of the witnesses upon whose testimony plaintiff relies.

Likewise there is no merit in defendant's contention that the heavy rainfall constituted an act of God. A rain storm which is merely of unusual intensity is not an act of God. (Southern Pacific Co. v. City of Los Angeles, 5 Cal.2d 545, 549, 55 P.2d 847; Mitchell v. City of Santa Barbara, 48 Cal.App.2d 568, 569, 120 P.2d 131.)

Second: Did the trial court err in holding defendant liable on the doctrine of absolute liability as set forth in Fletcher v. Rylands, 3 H.L. 330?

This question need not be answered by us. If a judgment is sustained by one of several counts in the complaint which is supported by substantial evidence it will not be reversed because of the insufficiency of the evidence as to other counts of the complaint. (Gogo v. Los Angeles etc. Flood Control Dist., 45 Cal.App.2d 334, 342[4], 114 P.2d 65; Kains v. First Nat. Bank, 30 Cal.App.2d 447, 451, 86 P.2d 935.)

In the present case, as pointed out above, the evidence sustained the trial court's finding as to count I of the complaint, to wit, that the damage to plaintiff resulted as a proximate cause of defendant's negligent use of his property. Hence it is immaterial whether the second count of the complaint is supported by the evidence or legal theory upon which it was predicated.

Third: Did the trial court err in awarding plaintiff $24,000 as damages for the depreciation of her property and at the same time ordering defendant to either remove the loose dirt which was the cause of the depreciation in the value of plaintiff's property or to place protective structures above it so as to prevent its endangering plaintiff's property?

Yes. A plaintiff may not recover the depreciation in the value of his property and at the same time have the cause of the depreciation in value ordered removed. (Meek v. De La Tour, 2 Cal.App. 261, 265, 83 P. 300. Cf. Severy v. Central Pacific R. R. Co., 51 Cal. 194, 197; Hopkins v. Western Pacific R. R. Co., 50 Cal. 190, 194.) Having obtained an injunction for the removal of the cause of the depreciation of her property plaintiff is not entitled to an award of damages on the theory of its depreciation, since the effect of such an order would be to unjustly enrich plaintiff. She would receive the sum representing the damage to her property because of the existence of the alleged nuisance which depreciated it, and at the same time defendant would be compelled to remove the cause of the damage, thus restoring plaintiff's property to its original undepreciated value.

The judgment is modified by striking from the second paragraph thereof, ‘1. For the sum of $26,732.29,’ and substituting in lieu thereof, ‘1. For the sum of $2,732.29.’ As thus modified it is affirmed.

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.