HAILS v. MARTZ

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District Court of Appeal, Second District, Division 3, California.

HAILS v. MARTZ et al.

Civ. 14923.

Decided: December 28, 1945

John A. Jorgenson, of Los Angeles, for appellant. Cushman & Paul, of Los Angeles, for respondents Martz. Frank Karr and C. W. Cornell, both of Los Angeles, for respondent Pacific Electric Ry. Co. Robert R. Ashton, of Glendale, and George H. Emerson, of Los Angeles, for respondent Del Amo Estate Co.

Plaintiff brought this action to require the removal of certain embankments which had been constructed on land owned by some of the defendants, asserting that said embankments interfere with the natural flow of surface waters and divert said flow over the land of plaintiff. Plaintiff also sought to have defendants Martz maintain an embankment which stands on their land, and to have the County of Los Angeles maintain an embankment which extends along the south side of Del Amo Street, a public highway. Defendants Martz and the Del Amo Estate Company filed cross-complaints, each alleging that the natural flow of water was away from their respective lands and praying that certain cross-defendants be required to remove embankments which they alleged diverted the surface waters onto their lands.

The judgment was that plaintiff take nothing, and that cross-complainants take nothing except that cross-complainant Del Amo Estate Company was given judgment against cross-defendant County of Los Angeles requiring it to remove all embankments and piles of dirt on Del Amo Street in that vicinity, and said county was permanently enjoined from constructing or maintaining any embankments or piles of dirt along said street in that vicinity. Plaintiff appeals from that judgment.

The three parcels of land involved in this action are owned by plaintiff, the defendants Martz and the defendant Del Amo Estate Company (hereinafter referred to as the estate). The lands of plaintiff and defendants Martz are used for truck gardening, and the estate operates a nursery on the southeastern portion of its land. In January, 1943, heavy seasonal rains occurred, and plaintiff alleged that the surface waters therefrom were prevented from following their natural flow westward by embankments constructed by defendants Martz along the northern and eastern boundaries of their land; that as a result the said waters collected and stagnated upon plaintiff's land and destroyed 14 acres of crops planted thereon of the value of $12,400; and that this diversion of surface waters and injury to crops planted on plaintiff's land will continue from year to year and depreciate plaintiff's land unless defendants are required to remove certain embankments and to maintain others.

Alameda Street extends in a general northerly and southerly direction. Del Amo Street extends in an easterly and westerly direction, and intersects Alameda Street approximately at right angles. Alameda Street in this vicinity, for some distance north and south of Del Amo, is bounded on the west by a strip of land 120 feet wide which is held by the defendant Pacific Electric Railway Company (hereinafter referred to as the railway) as a right of way. The plaintiff's land, consisting of 51.87 acres, is bounded on the north by (and extends approximately 1150 feet along) Del Amo Street, is bounded on the east by the railway right of way, and on the west by the Martz land. The Martz land, consisting of 80 acres, is bounded on the north by Del Amo Street, on the east by plaintiff's land and on the west by other farm land. The estate's land, consisting of approximately 235 acres, is bounded on the south by Del Amo Street, and extends to the east as far as the eastern boundary of plaintiff's land and to the west beyond the Martz land. The land of the estate is rolling and generally higher than the lands of plaintiff and the Martzes. There is a small valley on the land of the estate, the mouth of which is directly north of plaintiff's land, the westernmost edge of the valley mouth being approximately due north of the northwest corner of plaintiff's land. In 1926 the estate granted to the Shell Oil Company a 40-foot right of way across its land, which right of way is parallel to, and about 250 feet north of, Del Amo Street. In 1927 the Shell Oil Company, in order to build a spur railroad track across the valley, constructed an embankment, about 17 feet high, extending easterly and westerly on its right of way across the valley. At the time of said construction, 2 culverts were placed under and through the embankment to carry surface waters which flowed southerly in the valley through the culverts. The Shell Oil Company sold the spur track and right of way to the defendant railway in 1931. About 1924 one Marconi, who was leasing the land now owned by plaintiff from its then owner (one Cruz), constructed an earthen embankment about 1 1/212 feet high on Del Amo Street along the north boundary line of plaintiff's land. Marconi, about the same time, dug a ditch which extended westerly along the north side of said embankment, at the westerly end thereof, until it reached the Martz land, thence it extended southerly on the Martz land about 10 feet. At this time the Martz land was owned by W. M. Martz. The effect of said embankment and ditch was to divert the surface waters flowing from the mouth of the valley away from plaintiff's land and onto the Martz land. At a later and unknown date the county covered the westerly portion of said embankment with asphalt or mecadam. It appeared also that at a later date the county increased the size of the embankment. In 1925 Marconi terminated his lease, except as to five acres in the northwest corner which he continued to hold as lessee until 1929. About January 1, 1926, Marconi became a tenant of the Martz land under a five-year lease. Following his entry upon the Martz land he constructed an embankment extending easterly and westerly across the entire Martz land, approximately 150 feet south of the north boundary line thereof. The effect of said embankment was to carry across the north end of the Martz land the surface waters diverted onto said land by the embankment and ditch which Marconi had previously constructed. W. H. Martz died in 1937, at which time his land passed to its present owners, the three defendants Martz. The land had been continuously let to tenants from 1924 to February, 1942. Plaintiff purchased his land in June, 1942. On August 1, 1942, George Woo and Woo On Tong entered into possession of plaintiff's land under a written lease. About August 21, 1942, the defendants Martz caused that part of the ditch which Marconi had built on their land to be filled. There is, and for many years had been, a well and pump on the Martz land near its east boundary line and approximately 1,375 feet south of its north boundary line. In September, 1942, defendants Martz built an irrigation ditch, with an embankment on each side, on their land along the east boundary line thereof, extending northerly from their well and pump a distance of approximately 1,200 feet. In December, 1942, the county caused a cut to be made in the embankment on Del Amo Street in order to release surface waters flowing from the valley which had accumulated on the highway on the north side of the embankment, and which threatened to inundate the southeast portion of the estate's land. As a result the surface waters flowed upon plaintiff's land, and thereafter George Woo and Woo On Tong, the tenants, constructed an embankment on plaintiff's land commencing at the north line of plaintiff's land, connecting with the Del Amo Street embankment at a point east of the cut in said embankment, thence southwesterly to the west line of plaintiff's land, thence south along the west boundary line of plaintiff's land to a point south of the well and pump located on the Martz land. In January, 1943, after heavy seasonal rains, the surface waters from the mouth of the valley flowed through the cut in the embankment on Del Amo Street, thence along the north and west sides of the embankment made by plaintiff's tenants, broke through the west bank of the Martz irrigation ditch and flowed upon the Martz land, and broke through the embankment on the west line of plaintiff's land and flowed upon plaintiff's land. Plaintiff filed a claim for damages and abatement of nuisance with the Board of Supervisors of Los Angeles County which claim was rejected.

The court found that neither the estate nor the railway has in the past or does now divert the flow of surface waters; that prior to the construction of the railway embankment, waters flowed unimpeded in a southerly direction on the easterly side of the valley in a definite natural channel; that the culverts were placed at the point of the definite natural channel, and at all times since the construction of the railroad embankment the surface waters have flowed in the same natural channel, through the culverts and south of the embankment; that the natural slope of Del Amo Street where plaintiff's and Martz' land adjoin is downward toward the east; that the northeast portion of the Martz land is higher than the northwest portion of plaintiff's land; that the natural configuration of the land is such that surface waters from the valley flowed southerly from the mouth of the valley, thence across Del Amo Street at a point east of the west boundary line of plaintiff's land, thence southeasterly across plaintiff's land to the easterly boundary line thereof, thence southerly until they reached and emptied into Compton Creek, near the southeast corner of plaintiff's land; that in their natural flow none of the waters from the mouth of the valley flowed upon or across the Martz land; that the county, in grading, paving and maintaining Del Amo Street in this vicinity, caused loose dirt to be piled at places along the north edge of the street and along the south edge of the street between the end of the street embankment and Alameda Street; that this dirt has never been removed; that at the time of heavy seasonal rains the piles of loose dirt and the embankment on the street interfere with the natural flow of surface waters from the higher land, and threaten to, and unless removed will, cause flooding and consequent damage to nursery stock, buildings and other property of the estate; that in January, 1943, when the heavy seasonal rains occurred, surface waters from the mouth of the valley flowed through the cut in the street embankment and, instead of flowing across or spreading upon plaintiff's land pursuant to the natural configuration of the land, were diverted by the embankment, constructed by the tenants of plaintiff, in a southwesterly direction and against banks of the irrigation ditch located along the east line of the Martz land, causing the banks to break; that the effect of the embankment built by plaintiff's tenants was to divert the surface waters from the valley away from plaintiff's land and against the east bank of the Martz ditch, and threatens to cause irreparable damage to the Martz land at the time of each heavy rain; and that plaintiff did not participate in, authorize or consent to the construction of the embankment by his tenants, George Woo and Woo On Tong.

Appellant's principal contention is that the evidence is insufficient to support the findings in regard to the natural configuration of the lands and the natural flow of surface waters. The findings were made upon conflicting evidence. The trial judge, with the consent of counsel for the parties and in their presence, went to the properties here involved and made observations. However, appellant asserts that the trial judge did not see the conditions of 1894, nor of 1927, but that he saw only the conditions as they existed in 1942, ‘and what they then were, is not in dispute.’ Numerous maps and photographs were received in evidence to illustrate the conditions of the properties during a period of time from 1926 until after the 1943 rains, and several witnesses testified as to conditions from 1894 to 1943.

One Eilers, a witness called on behalf of defendants, testified that he was farming land in the vicinity of plaintiff's land in 1893; that in 1898 he bought land across the street from plaintiff's land, and adjoining Alameda Street, and had lived on that land since 1903; that in 1894 he went to work for one Robinson who then owned the land now owned by plaintiff and the Martzes; that at that time there was an old wood fence along the present boundary line between the lands of plaintiff and the Martzes; that there was also a fence along the north boundary line of plaintiff's land, in which there was a gate; that the gate was near the northwest corner of plaintiff's land; that in 1894 the surface waters from the valley flowed through the gate, and sometimes east of the gate, onto plaintiff's land; that there were then two draws on the north part of plaintiff's land which came together on the east half of the property; that the water flowed in a southeasterly direction across plaintiff's land, into the draws; thence into a railway ditch along the east boundary line of plaintiff's land, and into Compton Creek near the southeast corner of plaintiff's land; that soil washing down from the swale (valley) had made a knoll on plaintiff's land which extended southerly along the west fence about 100 feet; that the knoll caused the water to flow in a southeasterly direction; that in 1895 it did not rain much and the water did not flow through the gate; that he left this employment in the fall of 1896; that after Cruz purchased plaintiff's land (in 1902) he did ‘lots of levelling,’ and Marconi (Cruz' tenant) made it almost level; that plaintiff's land was plowed by going around the field which threw the dirt against the west fence; and that the ground got high along the fence from year to year plowing.

Cruz, a witness called on behalf of plaintiff, testified that in 1902 he purchased the north 40 acres of the land now owned by plaintiff, and has lived on the property since that time; that he farmed the Martz land before W. H. Hartz purchased it (Martz purchased it about 1913), and he also farmed the estate's land at the same time; that water from the valley did not flow over the Martz land; that the witness built an east-west embankment on the northern part of the Martz land to take care of water coming from a canyon west of the valley, but it was not to take care of water from the valley; and that the county put a dike on Del Amo Street so water from the valley would flow west onto the Martz land.

Marconi, a witness called on behalf of defendants, testified that he leased the property now owned by plaintiff and commenced farming it November 1, 1919, on which date he also started farming the Martz land; that he operated a dairy on plaintiff's property, and in 1921 he built a cow corral in the northwest corner of that property; that the corral extended from the west line of the property in an easterly direction a distance of 500 or 600 feet; that several times during rainy seasons the water from the valley flooded the corral and then flowed on plaintiff's land ‘to about half way’; that the health inspectors threatened to condemn his dairy in 1924 or 1925, and he took some of the soil which was coming down from the hill and some from the corral and built an embankment about 1 1/212 feet high on and along the south side of Del Amo Street north of plaintiff's property; that water coming from the valley washed the embankment away and again flooded the corral; that the witness then built another embankment in the same place which was about two feet high and extended from the northwest corner of the plaintiff's land in an easterly direction about 500 or 600 feet; that he then dug a ditch around the northwest corner of plaintiff's land and directed the water, which came from the valley, onto the Martz land; that before he dug the ditch no water ran around the northwest corner of plaintiff's property; and that the Martz land was higher than plaintiff's and during the time he was there no water ever accumulated on the Martz land.

One Scherer, called as a witness on behalf of defendants, testified that he is park superintendent for the City of Long Beach; that from 1926 to 1933 he was manager of the nursery on the estate's land, and devoted six full days a week to his duties as such manager; that there was a channel on the east side of the valley; that in 1926 the channel was about the center of the valley, but it gradually moved eastward as silt filled the channel; that the witness was present when the railway put the culverts in and he watched the entire proceeding; that the culverts were placed in the bottom of the channel; that when there were heavy rains the water flowed in the natural channel of the valley; that there was a depression 12 or 14 feet wide in Del Amo Street which was left by the natural flow of the water; that the water crossed Del Amo Street at a low point about 80 feet east of the west boundary line of plaintiff's land where it was stopped by the embankment along the south side of Del Amo Street; that it then flowed west, and then flowed around the corner of the embankment in a ditch which had been dug through high ground; that the water flowed from the valley in this manner from the time he first observed it in 1926 until he left the nursery in 1933; and that the water flowed in that manner both before and after the railway embankment was constructed.

It was stipulated that one Spencer, the engineer in charge of the survey for the Shell Oil Company spur track and who located the points at which the culverts would be placed, would testify, if present at the trial, that there was a definite channel of the stream on the easterly side of the valley ‘above and below’ the point where the ‘fill’ was placed and that the culverts were spaced at the location in that channel as he then found it.

One Miller, called as a witness on behalf of plaintiff, testified that he is a civil engineer; that in November, 1943, at the request of plaintiff, he made a survey of the land of plaintiff and the Martzes; that the Martz land was generally higher at its northeast corner than plaintiff's land at its northwest corner; that the land on the north side of Del Amo Street and west of the point where plaintiff's land joins that of the Martzes' is higher than the land south of Del Amo Street; and that the toe of a hill, which hill rises westward, is practically due north of the northwest corner of plaintiff's land, and the ground from the toe slopes downward toward the east.

One Widman, called as a witness on behalf of defendants, testified that he is employed by the railway as an assistant engineer; that he made a survey of this vicinity in 1937; that a map in evidence, defendants' exhibit G, depicts the profile of Del Amo Street as it was in 1927 before the highway was improved; that the map was made from notes taken by the county road department at that time (1927), and shows a low point in the street about 350 feet east of the northwest corner of plaintiff's land; that the difference between the elevation at the northwest corner of plaintiff's land and the low point is 2.4 feet; that Del Amo Street continues to rise toward the west from the low point for a distance of approximately 600 feet. He testified further that, in his opinion, based upon his study of the vicinity and certain maps in evidence, the water in 1927 flowed down the east side of the valley, across the low point in Del Amo Street and, if there was more water than the low spot could hold, it would flow across the street onto the area about 350 feet east of plaintiff's west boundary line; that the culverts in the railway embankment were placed where, in his opinion, the flow of the water was; that if the railway had no embankment and if the water flowed all across the valley, instead of in a channel, it would still come to the low point in the highway and, if there was enough water, flood the area directly south of the low point.

Plaintiff testified that there is a low point in Del Amo Street, and that (from the low point) the street begins to rise toward the west at a point about 150 feet east of the northwest corner of his land, and that ‘somewhat’ west of the northwest corner of his land the street goes through a small hill or ridge; that he had not observed any water in the valley, but had not been there at the time of or after any rains; that he had walked across the railway embankment four or five times since he purchased his land; that he saw a ditch along the westerly side of the valley, and what appeared to be a ditch along the easterly side of the valley from which an irregular, short ditch extended and connected with one of the culverts, but he did not observe whether they were natural or artificial; that there are eucalyptus trees along the boundary line between his land and the Martz land; that the trees extend from the northwest corner of his land southerly about 75 feet; and that the trees are on ground that is higher than the ground on either side of the row of trees.

As above shown, the evidence was conflicting, and inconsistent statements were made by some of the witnesses. It was for the trial court to determine which statements were entitled to credence. The trial judge had the benefit of his observation of the property. He also had the benefit of certain evidence which is not before this court, for the reason that witnesses frequently indicated the locations of natural and artificial objects and conditions, referred to in testimony by such expressions as ‘here’ and ‘there,’ by pointing to certain places on maps and photographs in evidence, without making identifying marks thereon to designate the places to which the witnesses referred. The findings of the trial court, in regard to the natural configuration of the lands and the natural flow of surface waters, are supported by the evidence.

Appellant further contends that the trial court erred in failing to find ‘that there is a drainage right of way across the Martz land by prescription or dedication.’ The complaint does not allege a right of way by prescription or dedication, and the case was not tried upon the theory that plaintiff had such a right of way. Plaintiff asserts that it clearly appears from his complaint that he claims to be the owner of certain land free from any waters over it, and he can show any title whether it arises by prescription or otherwise. ‘An adverse possession or prescription, as it is termed, when applied to an easement, may, under our system of practice, be pleaded either by reference to the statute, as provided by section 458 of the Code of Civil Procedure, or by stating at length the facts showing that the user commenced and continued under a claim of right, was peaceable, without interruption, open, notorious, and exclusive, and maintained with the knowledge of the plaintiff, etc.’ Montgomery v. Locke, 72 Cal. 75, 77, 13 P. 401. The trial court properly made no finding in this regard. Appellant also argues that there was a dedication by estoppel. Plaintiff did not plead nor prove facts which in law would constitute an estoppel. Central C. Co. v. Stansbury C. Co., 4 Cal.App.2d 413, 417, 40 P.2d 852.

Another contention of appellant is that none of the defendants has been possessed or seized of plaintiff's land, or of an easement to overflow it with surface waters, within the past five years, and therefore their defenses are barred by the statute of limitations under the provisions of Section 319 of the Code of Civil Procedure. It is apparently appellant's theory that the findings of the trial court respecting the flow of waters were based upon a prescriptive right in defendants to have the surface waters flow over plaintiff's land. It appears, however, that the trial court based its findings upon what it found to be the natural configuration of the lands.

Appellant's further contention, that the court erred in denying his motion to reopen the case for further evidence, cannot be sustained. This was a matter within the discretion of the trial court and it does not appear that the course abused its discretion.

By reason of the above conclusions, which dispose of the merits of the appeal, it is unnecessary to discuss further contentions of appellant.

The judgment is affirmed.

WOOD, Justice.

DESMOND, P. J., and SHINN, J., concur.

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