KELLY v. SPARLING WATER COMPANY

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

O. A. KELLY, Betty Lee Morales and Helen Clark, as Trustees of the Eden Foundation, Ltd., a Trust, Plaintiffs and Appellants, v. SPARLING WATER COMPANY, now known as Hillside Water Company, a corporation, Defendant and Respondent,

O. A. KELLY, Betty Lee Morales and Helen Clark, as Trustees of Eden Foundation, Ltd., a Trust, Plaintiffs and Appellants, v. Maurice C. SPARLING, as Executor of the Estate of Raymond Walter Sparling, deceased, Defendant and Respondent.*

Civ. 23210.

Decided: January 21, 1959

Joseph M. Wapner, Los Angeles, for appellants. Belcher, Henzie & Fargo, and George M. Henzie, Los Angeles, for respondents.

Appeal by plaintiffs from parts of a modified judgment. The judgment was modified by the court in ruling on defendants' motion for a new trial. Code Civ.Proc. § 662.

There were two actions below, which were consolidated. They prayed for an injunction to restrain defendants from diverting water from a spring on plaintiffs' property and for damages. One judgment was rendered in the consolidated actions.

A Mr. and Mrs. Barton owned about 19 acres of land, known as the Eden property, in Topanga Canyon from about 1931 to 1954. During that time and for many years prior there was a spring on the property which supplied water for domestic and irrigation uses. During the time the Bartons occupied the property there never was a shortage of water. In early 1954 the Bartons conveyed the property to plaintiffs. Adjoining and below the Eden property there was about an acre of land known as the Moldenhauer property. In July 1954 Raymond Sparling, now deceased, purchased about 3,200 square feet of the Moldenhauer property for the purpose of drilling a water well and, if it proved productive, conveying it to Sparling Water Company of which he was president for the sale of water to consumers outside the watershed.

The trial court found: 1. In September 1954 and for many years prior thereto there was a spring on the Eden property which produced water at the rate of 2,304 gallons a day (1.6 gallons a minute). 2. The spring had its source from underground water-bearing strata underlying the Eden and Moldenhauer properties and had no surface flow. 3. The waters from the spring were collected in a concrete-lined gathering basin on the Eden property and did not flow off of it. 4. The gathering basin was located about 485 feet upslope from the Moldenhauer property. 5. The water collected in the gathering basin was used for many years to serve the Eden and Moldenhauer properties. 6. In August and September 1954 Sparling drilled a well, known as the Sparling well, on the Moldenhauer property to a depth of 310 feet. 7. In drilling the Sparling well, four or more water-bearing strata were entered or passed through. 8. In so doing the water-bearing strata which were the source of the water in the spring on the Eden property were entered, resulting in lowering the water in those strata and causing the spring to cease to flow and the surrounding marshy terrain to dry up.

The trial court further found: 1. Immediately on the Sparling well being put into operation, Sparling conveyed the land on which the well was situated to Sparling Water Company, now Hillside Water Company. 2. Since that time Sparling Water Company, called ‘the company,’ has produced from the well and sold to its customers in excess of 14,000,000 gallons of water. 3. None of the water produced from the well has been used on the land on which the well is situated, and there is no beneficial use to which the water could be put on that land. 4. By reason of the drilling of the Sparling well and the drying up of the spring, 14 eucalyptus trees on the Eden property having a reasonable value of $100 each were caused to die, to plaintiffs' damage in the sum of $1,400.

The trial court also found: 1. Plaintiffs now reasonably require and can put to beneficial use on their land for domestic and irrigation purposes 45,000 gallons of water a month, and no more. 2. Plaintiffs could drill a well on their land to the same water-bearing strata as are tapped by the Sparling well at a cost to them for the drilling and equipment of the well of $2,500. The drilling of another well to the strata from which the Sparling well is producing would be likely to cause an economic waste of water and continued litigation between the parties. 3. There is a shortage of water in the occupied areas of Topanga Canyon.

The court concluded plaintiffs were entitled to judgment against defendant Maurice C. Sparling, as executor of the estate of Raymond Sparling, deceased, in the sum of $1,400 for the loss of the 14 eucalyptus trees; to judgment for damages against Sparling Water Company, now known as Hillside Water Company, in the sum of $600, the cost of purchasing water; and that Sparling Water Company should be ordered to plug the Sparling well and to cease producing water therefrom until such time as the water levels in the underground strata again have risen so that the spring on the Eden property again flows at the rate of 2,304 gallons a day (1.6 gallons a minute), and should be enjoined from thereafter producing from the well to any extent which will reduce the flow of the spring below that amount, provided that these injunctions should be stayed so long as the water company shall deliver to plaintiffs in the reservoir upon their land 45,000 gallons of water each month with not less than 1,000 gallons each day, and that the court should retain jurisdiction to fix the amount of water which can be economically used upon the Eden property up to but not to exceed 2,304 gallons a day (1.6 gallons a minute). Judgment was entered accordingly.

Defendants moved for a new trial. A judge other than the one who presided at the trial heard the motion. The motion for a new trial was denied. However, in so ruling, the court modified the conclusions of law and the judgment. It did not modify or add to the findings in any respect. The modifications of the conclusions of law were: 1. Plaintiffs are not entitled to judgment for the loss of the 14 eucalyptus trees, ‘not having plead any special damages.’ 2. Plaintiffs are entitled to judgment against defendant Sparling Water Company, ordering said defendant at its election either: (a) to pay plaintiffs $3,000, being the cost of drilling and equipping a well upon the Eden property and of obtaining water from Sparling Water Company at its established rates for a reasonable period until the well is drilled and equipped; or (b) to do the things provided by the original judgment.1 The modifications of the conclusions of alw further concluded that in the event Sparling Water Company elected to pay the $3,000 to plaintiffs for the drilling and equipping of a well, plaintiffs should have the right to produce as much water therefrom as reasonably might be required from time to time for a reasonable overlying use of the Eden property. A modified judgment was entered accordingly. Plaintiffs appeal from the parts of the modified judgment which (1) deny plaintiffs relief against the executor of the estate of Raymond Sparling for the loss of the eucalyptus trees; (2) give Sparling Water Company, now Hillside Water Company, an election to pay them $3,000, the cost of drilling the equipping a well, and of obtaining wather from the company until the well is drilled and equipped; and (3) awards costs to such executor.

The principal specifications of error are that in ruling on the motion for a new trial the court erred (1) in adding to the judgment the alternative giving the company an election to pay plaintiffs $3,000, the cost of drilling and equipping a well upon the Eden property, and of obtaining water from the company until the well is drilled and equipped; (2) in striking that part of the judgment awarding plaintiffs $1,400 for the eucalyptus trees on the ground the loss was special damages which had not been pleaded; and (3) awarding costs to the executor.

The cause was tried without a jury. In ruling on a motion for a new trial in a cause tried without a jury the court may, on such terms as may be just, change or add to the findings, modify the judgment in whole or in part, vacate the judgment in whole or in part, and grant a new trial on all or part of the issues. Code Civ.Proc. § 662. The purpose of section 662 is to afford the trial court the right to correct its own errors in ruling on a motion for a new trial. Solorza v. Park Water Co., 86 Cal.App.2d 653, 663, 195 P.2d 523.

As we have indicated, the judge who heard and ruled on the motion for a new trial and who modified the judgment was not the one who presided at the trial, who saw, heard, and evaluated the testimony, who judged the credibility of the witnesses, who weighed the evidence, who obviously believed and accepted the testimony of some witnesses and who disbelieved and rejected the testimony of others; who heard the arguments of counsel, and on conflicting evidence made findings. No affidavits were filed in support of the motion. It is said that the judge who ruled on the motion did not have a transcript of the oral proceedings before him. He took no evidence. He manifestly ignored the findings. A judge who did not preside at the trial but who is designated under section 661 of the Code of Civil Procedure to hear a motion for a new trial may not modify a judgment which is based on findings made by a trial judge on conflicting evidence without changing the findings or making new and different findings unless the original findings do not support the original judgment. The original findings at bar support the original judgment.

City of Long Beach v. Wright, 134 Cal.App. 366, 25 P.2d 541, was an appeal from an amended judgment. One judge presided at the trial; another was designated to hear the motion for a new trial. The judge who ruled on the motion for a new trial increased the amounts awarded to condemnees. The court held (134 Cal.App. at page 370, 25 P.2d at page 542):

‘Respondents urge that a judge who did not preside at the trial, but who is designated under section 661 of the Code of Civil Procedure to hear a motion for new trial, may exercise all the powers of the court in connection therewith as provided in section 662 of the Code of Civil Procedure. Section 661 provides that in case of the inability of the judge who tried the case to hear such a motion it shall be heard and determined by any other judge.

‘It has long been the law of this state that ‘a party litigant is entitled to a decision upon the facts of his case from the judge who hears the evidence, where the matter is tried without a jury,’ and that ‘he cannot be compelled to accept a decision upon the facts from another judge.’ Guardianship of Sullivan, 143 Cal. 462, 467, 77 P. 153, 155; De Mund v. Superior Court, 213 Cal. 502, 505, 2 P.2d 985; Hughes v. De Mund, 96 Cal.App. 365, 368, 274 P. 405. In the last-cited case it was urged that a judge other than the one hearing the evidence may weigh the evidence and decide according to its preponderance in determining a motion for a new trial. With this contention the appellate court was in accord, but said (96 Cal.App. at page 370, 274 P. at page 406): ‘If the motion is denied, however, an appeal may be taken from the original judgment, rendered by a judge who heard the evidence. If a new trial is granted, the case will be decided again by a judge who hears the evidence. But in this case the judgment was rendered by a judge who did not hear the greater and more important part of the evidence.’ In the award of damages as changed and made in the instant case the judge who made the changes heard none of the evidence and yet made a very substantial increase in the award, on extremely conflicting evidence, over that made by the judge who heard all of the evidence. * * *

‘[134 Cal.App. at page 372, 25 P.2d at page 543.] In our opinion it was not the purpose of such section [Code Civ.Proc. § 662] to authorize a judge who did not hear the evidence to change the decision of one who did, by weighing conflicting evidence as to values and selecting the values which in his opinion are the best, even assuming that such decision is not supported by the evidence.

‘The decision on a question of fact of one judge in a trial court composed of more than one is the decision of the court, and in our opinion to hold that the action of the Legislature does what respondents claim for it would in effect be holding that the Legislature has the power, without constitutional authority so to do, to vest a superior court judge with powers not contemplated by section 5, article 6, of the Constitution, and more akin to the jurisdiction of courts of appeal, though greater even, extending, as they would, not only to the reviewing of conflicting evidence but to the modifying of decisions reviewed in accordance with the judgment reached by the reviewing judge.’

In David v. Goodman, 114 Cal.App.2d 571, 250 P.2d 704, 706, the appellant contended that ‘a trial court is without power to enter a judgment based upon findings made by another judge.’ Upholding the contention, the court stated (114 Cal.App.2d at page 574, 250 P.2d at page 706):

‘The leading case in this state on the subject is Guardianship of Sullivan, 143 Cal. 462, 77 P. 153, an incompetency proceeding. There it appears that ‘The evidence was all taken and the examination of the alleged incompetent had before one judge, who has never given any decision in the matter. The matter was subsequently argued and submitted for decision to another judge, who never heard any of the witnesses testify, and before whom * * * no report of the testimony was ever produced. He orally decided * * * that letters of guardianship should issue. The only order of judgment ever entered was signed by still another judge, who had never heard either evidence or argument.’ In reversing the order the court said: ‘A party litigant is entitled to a decision upon the facts of his case from the judge who hears the evidence, where the matter is tried without a jury * * *. He cannot be compelled to accept a decision upon the facts from another judge * * *.’ That case has been followed in In re Williams, 52 Cal.App. 566, 199 P. 347; Hughes v. De Mund, 96 Cal.App. 365, 274 P. 405; City of Long Beach v. Wright, 134 Cal.App. 366, 25 P.2d 541; McAllen v. Souza, 24 Cal.App.2d 247, 74 P.2d 853, and Reimer v. Firpo, 94 Cal.App.2d 798, 212 P.2d 23. See, also, De Mund v. Superior Court, 213 Cal. 502, 505, 2 P.2d 985, and Foss v. Commissioner of Int. Rev., 1 Cir., 75 F.2d 326, 329.'

As stated earlier, the judge who ruled on the motion for a new trial did not in any respect change or add to the findings of the judge who presided at the trial. The findings of the judge who presided at the trial stated that the drilling of another well on the Eden property to the strata from which the Sparling well is producing would be likely to cause an economic waste of water and continual litigation between the parties. In view of this unchanged finding, the judge who denied the motion for a new trial was without power to give Sparling Water Company the election to pay plaintiffs $3,000 to drill and equip a well upon the Eden property.

It is appropriate to observe that the modified judgment makes no provision for the eventuality that plaintiffs might find a dry hole or might drill two or more dry holes before producing sufficient water for their domestic and irrigation purposes. Further, it does not appear how the judge who ruled on the motion for a new trial arrived at the figure $3,000 as the cost of drilling and equipping a well upon the Eden property when the trial judge found it to be $2,500.

Plaintiffs did not plead the loss of the 14 eucalyptus trees as special damages. They alleged general damages in an amount in excess of that awarded to them in the original judgment. The trial judge found that by reason of the drilling of the Sparling well and the drying up of the spring, the 14 eucalyptus trees were caused to die, and concluded that plaintiffs are entitled to judgment against defendant Maurice C. Sparling, as executor of the estate of Raymond Sparling, in the sum of $1,400. This conclusion was omitted from the modified conclusions of law but the finding remained. In view of the unchanged finding, it was not within the power of the judge who denied the motion for a new trial to strike that part of the original judgment which awarded plaintiffs $1,400 for the loss of the trees unless the damages for the loss were special damages as a matter of law.

Defendants contend the loss of the eucalyptus trees was special damage; and that since they were not pleaded specifically, they may not be recovered. If the loss of the eucalyptus trees constitutes general damages, the judge who ruled on the motion for new trial erred in striking that part of the original judgment which awarded plaintiffs damages for their loss.

Special damages not alleged in the complaint cannot be recovered. Bonde v. Bishop, 112 Cal.App.2d 1, 5, 245 P.2d 617. A general allegation of damages will authorize proof of all damages necessarily resulting or which may be legally implied from the act complained of. Morris v. Allen, 17 Cal.App. 684, 688, 121 P. 690; Olds & Stoller, Inc. v. Seifert, 81 Cal.App. 423, 427, 254 P. 289; Armstrong v. Adams, 102 Cal.App. 677, 682, 283 P. 871.

Damages which necessarily result from the act complained of are denominated general damages, and may be proved under the ad damnum clause or general allegation of damage; while those which are the natural consequences of the act complained of, and not the necessary result of it, are termed special damages. Treadwell v. Whittier, 80 Cal. 574, 579, 22 P. 266, 5 L.R.A. 498; Stoltz v. Converse, 75 Cal.App.2d 909, 914, 172 P.2d 78; 14 Cal.Jur.2d 650, § 22.

Zvolanek v. Bodger Seeds, Ltd., 5 Cal.App.2d 106, 42 P.2d 92, was an action for damages for injuries to land and sweet peas growing thereon resulting from flooding by water. The defendant so negligently flooded its land in irrigating that water ran into and over the land of the plaintiff and the sweet peas growing thereon and damaged them. Holding the damage to the sweet peas was general, the court stated (5 Cal.App.2d at page 108, 42 P.2d at page 93):

‘The measure of damages arising from tort, such as the one herein pleaded, is the amount which will compensate for all detriment proximately caused thereby, whether it could be anticipated or not. (Civ.Code, § 3333.) The damage alleged herein was that which necessarily resulted from the flooding of the land and the sweet peas thereon.’

We are of the opinion that the judge who presided at the trial was warranted in concluding that the loss of the trees was general damage. The trees were ‘quite big’ and had been planted some years before the Bartons purchased the property on marshy ground near the spring ‘with the object of sucking off and disposing of a lot of the water from the overflow of the spring.’ This evidence was elicited without objection:

‘Q. After the well was drilled by Mr. Sparling, what was the condition around the eucalyptus grove? A. The eucalyptus trees began to dry up, and the place dried up.

‘Q. Have any of the eucalyptus trees since the Sparling well was dug died? A. About fourteen fo them.

‘Q. Can you describe those trees for us? A. The largest one that died first was right across the drive from the spring, and it stands about 100 feet in height, and it died first and is just standing there dead. The subsequently small ones began to die.’

The trees were real property and were a part of the land. Civ.Code §§ 658, 660; Peterson v. Gibbs, 147 Cal. 1, 7, 81 P. 121; City of Los Angeles v. Hughes, 202 Cal. 731, 736–737, 262 P. 737. They were growing in marshy terrain. They were nourished by the water in the strata in which the Sparling well was drilled. Drilling of the Sparling well caused the spring to cease to flow. The drilling of the well caused the marshy terrain to dry up and the trees to die. A reasonable inference is that the death of the trees necessarily resulted from the drilling of the Sparling well.

Defendants contend that plaintiffs are not hurt by the modified judgment for the reason they were not entitled to any judgment. They claim, in effect, there was no evidence that they took any water from plaintiffs and therefore plaintiffs were not prejudiced by any error in modifying the judgment. No purpose would be served in reviewing the extensive evidence received by the judge who presided at the trial. We have examined the record and are satisfied the evidence supports his findings in all respects and particularly the finding that the drilling of the Sparling well caused the spring upon the Eden property to cease to flow and the surrounding marshy terrain to dry up.

Since that part of the modified judgment denying plaintiffs relief against the executor of the estate of Raymond Sparling must be reversed and the original judgment which awards damages against him reinstated, plaintiffs are entitled to costs from him. The cost bill filed by such executor falls with the reversal of that part of the modified judgment. (13 Cal.Jur.2d 276, § 54.) It is therefore unnecessary to consider plaintiffs' appeal from the order denying their motion to retax costs.

The parts of the modified judgment entered November 5, 1957 are reversed. The judgment entered August 28, 1957 is reinstated as rendered.

FOOTNOTES

1.  The other elections as stated in the modified judgment were either to: ‘(b) Plug the Sparling Well and cease producing water therefrom until such time as the water levels in the underground strata again have arisen so that the spring upon the Eden Property again flows at the rate of two thousand three hundred and four (2304) gallons per day (1.6 gallons per minute) or until a well is drilled upon the Eden Property, and be enjoined from thereafter producing water from the Sparling Well to any extent which will reduce the flow of the spring upon the Eden Property below two thousand three hundred and four (2304) gallons per day (1.6 gallons per minute) or until a well is drilled upon the Eden Property; or (c) Deliver to plaintiffs in the reservoir now maintained by plaintiffs upon the Eden Property, at its own expense and without cost to plaintiffs, forty-five thousand (45,000) gallons of water each month with not less than one thousand (1,000) gallons to be delivered each day so long as water is produced from the Sparling Well or until a well is drilled upon the Eden Property. In the event said defendant exercises this election, the court shall retain continuing jurisdiction to fix the amount of water which economically could be used in the future upon the Eden Property, up to, but not to exceed, two thousand three hundred and four (2304) gallons a day (1.6 gallons per minute). Provided, however, that should said spring in the future resume production and water become available therefrom the obligation of Sparling Water Company, now known as Hillside Water Company, to furnish water to plaintiffs, as hereinabove or hereafter in the future fixed, shall be reduced by the amount of water available to plaintiffs from said spring and in no event shall exceed the different between the water available from said spring and two thousand three hundred and four (2304) gallons per day (1.6 gallons per minute).’

VALLEÉ, Justice.

SHINN, P. J., and WOOD, J., concur.