UNION TRANSP CO v. SACRAMENTO COUNTY

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District Court of Appeal, Third District, California.

UNION TRANSP. CO. et al. v. SACRAMENTO COUNTY et al.*

Civ. 8158.

Decided: April 16, 1953

Horace E. Dunning, Sacramento, for appellant. Gerald M. Desmond, Sacramento, for Sacramento County. Johnson & Davies and Claire H. Greve, Sacramento, for El Dorado County.

Plaintiffs and appellants, Union Transportation Company, a corporation, and George and Ray Smith, copartners, joined in two actions, one brought in the County of Sacramento and the other in the County of El Dorado, alleging in each that the defendant counties were liable for the proper maintenance of a bridge, part of a public road, where it crossed a creek known as Carson Creek, which bridge collapsed when a truck owned by the Union Transportation Company and loaded with cattle owned by the Smiths attempted to cross, resulting in damage to the truck and to the cattle. The actions were predicated on the Public Liability Act of 1923, 2 Deering's Gen.Laws, Act 5619. The venue of the action filed in Sacramento County was changed to El Dorado and both actions came on for trial. The allegations in both complaints were identical. The cases were tried to a jury and when plaintiffs rested the trial court granted motions for nonsuits in favor of both defendants in each action. From the judgments thereafter entered upon these orders the plaintiffs have appealed.

The cited public liability law provides that counties are liable for injuries to property resulting from defective conditions of public highways where the board of supervisors having authority to remedy the condition had notice of the defects and failed for a reasonable time thereafter to remedy the condition or take such action as might be appropriate to protect the public against the same. There is no claim that plaintiffs failed to prove an injury to their property and the evidence is sufficient to show that the collapse of the bridge resulted from its defective condition. The bridge was made of wood. There was testimony that the ends of the stringers where they rested on the north concrete abutment were rotted and deteriorated; that the bottom ends of the uprights were rotted, some of them having rotted to a depth of several inches; that the bridge had been last repaired some 12 years before it collapsed, at which time, however, the repairs consisted of new planking; that the bridge was built about 1920 and that when built it was so constructed that it had a load capacity of 90 tons, that is, 30 tons to the span with three spans, with a large margin of safety before the breaking point would be reached. The equipment under which it collapsed consisted of a truck and trailer, which with the loads totaled a weight of about 30 tons. From the foregoing it could be readily inferred and must be taken as true on this appeal that the bridge had been allowed to become defective through rotting of its members, and in view of the slow process of such deterioration and the great extent thereof as evidenced by the direct testimony and the fact of collapse under a load far below the proper capacity of the bridge it can be further inferred, and must here be taken as true, that whichever governing board had authority to remedy, and the duty to maintain, the bridge had constructive knowledge of the condition. Sheldon v. City of Los Angeles, 55 Cal.App.2d 690, 693, 131 P.2d 874; Wise v. City of Los Angeles, 9 Cal.App.2d 364, 366, 49 P.2d 1122, 50 P.2d 1079. It is a matter of common knowledge, of course, that wooden bridges will rot and that while the process is slow, nevertheless those in charge of such bridges are charged with inspection at reasonable periods. Under the circumstances in evidence here it was a question of fact for the jury to determine as to whether or not a dangerous condition of the bridge had existed for a sufficient length of time to constitute constructive notice with reasonable time after notice to have remedied the condition or protected against it. Sheldon v. City of Los Angeles, supra, 55 Cal.App.2d at page 693, 131 P.2d 874. The court has judicial knowledge that the boards of supervisors of the defendant counties were the governing bodies having authority and duty to maintain bridges which were parts of public roads.

A prima facie case was also made with respect to the character of the road and bridge involved. The 1923 statute upon which the cases were predicated refers to the dangerous and defective condition of public highways. At that time the Political Code, Section 2618, defined public highways as: ‘In all counties of this state public highways are roads, streets, alleys, lanes, courts, places, trails, and bridges, laid out or erected as such by the public, or if laid out or erected by others, dedicated or abandoned to the public, or made such in actions for the partition of real property.’ There was evidence that the section of the road involved was part of a road going southerly from a point commonly known as White Rock and extending southerly beyond the property of the Smiths; that it was an old road; that to the knowledge of some of the witnesses, going back to 1936, the road had been traveled by property owners southerly from Smiths, by hunters, picnickers and fishermen; that somebody went over it at least once a week and oftener during the hunting and fishing seasons; that it had never been closed off by gates or fences; that a road maintainer was run over it once or twice a year, although the witness did not know to what county the equipment belonged; that it was, however, county equipment; that the maintenance work consisted of a power grader going over the road, throwing that outside dirt toward the center and smoothing off the road surface; that sometimes there would be 20 automobiles a day making a round trip on the road on a week-end; that the traffic had steadily increased since 1940.

‘It is a matter of common knowledge that many roads and highways in this state—starting, perhaps, first as mere trails—became public highways without any formal or express dedication, but by long uninterrupted use and general acquiescence. When, as in this case, the public, or such portion of the public as had occasion to use the road, traveled over the same, with full knowledge of the landowners interested, without asking or receiving any permission and without objection from any one, for a period of time beyond that required by law to bar a right of action, a right in the public to the use of the road arises by prescription or implied dedication. Schwerdtle v. County of Placer, 108 Cal. 589, 41 P. 448.’ Hartley v. Vermillion, 141 Cal. 339, 348, 74 P. 987, 991; see, also, City of Long Beach v. Payne, 3 Cal.2d 184, 189, 44 P.2d 305. The foregoing evidence was sufficient to show prima facie that the road in question was a public highway within the meaning of the liability statute invoked.

Although they had sued both counties, nevertheless it was incumbent upon plaintiffs to make out a prima facie case against one or the other of the counties by showing that the bridge was in such county, there being no attempt to claim or to prove that there was any joint maintenance situation involved. These plaintiffs were bound to approach the point where they could no longer contend both defendants were liable. They contend that they did make a prima facie showing that the bridge was in El Dorado County. This contention must be sustained. They produced the official surveyor of El Dorado County who had been such for a period of nine years. He testified he had been directed by his board of supervisors to ascertain whether or not the bridge in question was in El Dorado County and that pursuant to that authorization he went forth to trace the common boundary line between the two counties and thus determine upon which side of the line the bridge lay. He surveyed what he believed to be the line for 17,000 feet and past the bridge. He stated that he started at a concrete monument, shown on the highway right of way maps as being on the boundary between the two counties. He went from there to a like monument he found in the former highway 50. He also found on the right of way of the Southern Pacific Railroad a monument, being a wooden post painted ‘El Dorado County’ on the east side and ‘Sacramento County’ on the west. Further south he found a pipe set in the fence line, the top of it painted white. There was introduced in evidence a plat of his survey and it appears therefrom that the line through the indicated monuments is straight, which corresponds with the call of the statute describing that part of the boundary common to the two counties. The plat shows, and he testified, that at the point on the railroad track where he found the monument described and just south of the right of way the road, which had been on the Sacramento County side of the line, crossed the line and turned southerly along it and across Carson Creek over the bridge in question at a point which was 200 feet within El Dorado County, assuming that the line he had traced was the common boundary of the counties. There was offered in evidence a copy of the official topographic map produced by the United States Geological Survey and covering the area in question. This map was rejected upon objection of the defendant El Dorado County, but the rejection was error. The trial court and this Court alike have judicial knowledge of the public and private official acts of the Executive Department of the United States, among which are the public surveys. C.C.P., Sec. 1875, subd. 3; Merritt v. Trinity County, 3 Cal.App. 168, 84 P. 675; Rogers v. Cady, 104 Cal. 288, 38 P. 81; Varcoe v. Lee, 180 Cal. 338, 343, 181 P. 223; see, also, Tompkins, Chamberlayne Trial Evidence, p. 1047. The Geological Surveys are made, and maps reflecting them and the information they are required to furnish are published, under statutes passed by Congress. The work has been in progress since 1882. These surveys are intended to include information as to such features as bodies of water, streams, relief, including mountains, hills, valleys and other features of the land surface and the culture of the region, that is, the works of man, such as towns, cities, roads, railroads and boundaries. Faithful to these purposes, the offered map shows the ‘approximate boundary’ between the two counties, shows the Southern Pacific Railroad referred to in the testimony of the county surveyor and the point at which it crosses the common boundary, shows the road referred to in the testimony of the various witnesses and shows that road crossing the common boundary, at the very point testified to by the surveyor, thence turning southerly therefrom; shows it crossing Carson Creek on the El Dorado County side of the line and thence leaving that county by recrossing the common boundary. The testimony of the surveyor, the line as fixed by him, and the map descriptions of the physical features we have referred to all correspond with remarkable fidelity. The Geological Surveys are well known for their great accuracy and the high degree of care with which they are made. A designation on such a map of a line as being an approximate boundary between El Dorado and Sacramento counties is not to be taken as meaning that the boundary has not been located with considerable accuracy. And when the matters shown by the Geological Survey coincide so closely with the monuments found by the surveyor, arranged along a straight line, the entire showing is sufficient to establish prima facie that the bridge in question was in the defendant El Dorado County. The map should have been received in evidence and when as here rejected evidence which ought to have been admitted would have completed a prima facie showing the rejection is prejudicial. Of course by parity of reasoning the plaintiffs have established prima facie that the bridge was not in Sacramento County. It may be added that on cross-examination the surveyor testified that in what he did he had done what any surveyor would have done who had been sent out on the same mission. The force and effect of this testimony is not dispelled by his further statements that he did not know of his own knowledge who had placed the monuments he accepted nor when they had been placed, nor whether or not they were placed accurately. The common line between the counties of El Dorado and Sacramento in the area with which we are here concerned was established in 1850 by legislative enactment. The common line begins at the confluence of the north and the south fork of the American River and proceeds thence up the south fork to a point described in the statute as being one mile beyond Mormon Island, thence it turns southeasterly and proceeds in a straight line past the location here involved and on for many miles until it intercepts the Cosumnes River at a point eight miles ‘above the house of William Daylor’. True, a surveyor starting out now to trace the Sacramento County and El Dorado County boundary might experience great difficulty in finding its exact location upon the ground, but this does not destroy the prima facie effect of the evidence here received and offered as to lines, locations and the relation thereto of the bridge which collapsed.

The judgment in favor of Sacramento County is affirmed; the judgment in favor of El Dorado County is reversed.

VAN DYKE, Presiding Judge.

PEEK and SCHOTTKY, JJ., concur.