Reset A A Font size: Print

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

Ross M. MEHL and Marilyne M. Mehl, Cross-Complainants and Respondents, v. The PEOPLE of the State of California, acting By and Through the DEPARTMENT OF PUBLIC WORKS, Cross-Defendants and Appellants.

Civ. 41699.

Decided: February 06, 1974

Harry S. Fenton, Sacramento, Joseph A. Montoya, Robert L. Meyer and Hugh R. Williams, Los Angeles, for appellants. Barrick, Poole & Olson, Pasadena, and Oliver, Stoever & Laskin, by Thomas W. Stoever, Los Angeles, for respondents.

The State of California appeals a judgment in inverse condemnation in favor of Ross and Marilyne Mehl.

In 1964 the Mehls purchased a 5.85 acre unimproved parcel of property in the City of Industry for $82,100. Although a large natural drainage swale ran north through the middle of the property the parcel was considered suitable for future industrial development, and the Mehls planned to hold it for investment purposes. In 1965 the State began to construct the Pomona Freeway on property immediately adjacent to and south of the Mehl property. To accommodate the natural south-north drainage flow through the swale, which otherwise would be blocked by the east-west freeway, the State in 1965 installed under the freeway a double three-foot by eight-foot concrete box culvert which channeled the freeway runoff and the natural drainage flow onto the Mehl property. Construction of the culvert was completed during 1965, and the freeway was opened to traffic in 1967. In February 1969 the County of Los Angeles condemned a drainage easement down the middle of the Mehl property and on its easement constructed a dog-leg, dirt ditch which carried the drainage flow from the freeway culvert to a County storm drain north of the Mehl property.

After the County filed an action to determine the amount of compensation payable for its drainage easement on the Mehl property, the Mehls cross-complained against the State in inverse condemnation for partial loss of their property as a result of the freeway construction. The actions were tried jointly but the trial was divided into two parts, the first for court consideration of the State's affirmative legal defenses, the second for jury determination of the value of the interests taken. In rejection the State's affirmative legal defenses, the court ruled the cross-complaint was not barred by the statute of limitations or by the claims statute, and it denied the State's claim of estoppel by deed. The jury then fixed the value of the County's easement at $14,100 and the value of the easement's severance damage to the remainder of the Mehl property at $8,775 (together totaling $22,875, plus $2,739.36 interest), and it fixed the value of what had been taken by the State's freeway construction at $82,745. In 1972 the court entered judgment for these amounts, plus interest on the State award at 7 percent from 30 June 1965, plus $20,350 attorneys' fees and costs. In return for this total recovery of approximately $170,000, the State received the right to discharge water on the property in excess of the amount that formerly drained naturally onto the property, and the County acquired a drainage easement across a portion of the property; the Mehls of course retained the property itself and all other incidents of ownership in the property. The County is not a party to this appeal, and we are concerned solely with the Mehls' judgment against the State on the cross-complaint.

The State argues the court should have found in its favor on the issue of estoppel by deed, on the statute of limitations, and on the claims statute; additionally, it contends the jury's verdict should be reversed for insufficiency of evidence and for impropriety of instructions.

Estoppel by Deed. The Mehls purchased their 5.85 acre parcel of property from the Ward family in 1964. The Wards originally owned 8.20 acres, but in 1959 they sold the southerly 2.35 acres to the State for $19,000 as right-of-way for the planned freeway. The deed of sale from the Wards to the State provided: ‘The grantor understands that the present intention of the grantee is to construct and maintain a public highway on the land herein conveyed in fee and the grantor, for himself, his successors and assigns, hereby waives any claims for any and all damages to grantor's remaining property contiguous to the property herein conveyed by reason of the location, construction, landscaping or maintenance of said highway.’ According to the State, the Ward deed estops the Mehls, successors in interest to the Wards, from claiming damages against the State.

The trial court concluded there was no estoppel, and we agree. Estoppel is a question of fact, and the determination of the trier of fact is binding on appeal unless the contrary conclusion is the only one that can reasonably be drawn from the evidence. (Albers v. County of Los Angeles, 62 Cal.2d 250, 266, 42 Cal.Rptr. 89, 398 P.2d 129.) The court was required to determine what the parties intended by the waiver clause in the deed. (Isenberg v. Salyer, 62 Cal.App.2d 938, 941–942, 145 P.2d 691.) On this subject the court found: the waiver clause was a standard clause used by the State in all similar right-of-way acquisitions; the State did not disclose to the Wards its intention to construct as part of the freeway the particular drainage system that was later installed; the Wards did not know a drainage system discharging water onto their property would be constructed as part of the freeway; final plans for the freeway drainage system were not completed until 1964; the Wards did not intend to waive the claim for damages later asserted by the Mehls. The testimony of previous owner Clifford Ward, of state right-of-way agent Cecil Rumbeck, and of state engineer Wallace Griffin supports the court's findings, and the findings buttress the court's conclusion that the Mehls' claim had not been waived.

Whenever an owner of land has consented by deed to the taking of his property for public use, it is assumed he has been compensated for all reasonably foreseeable damages to the property that could result from the taking and public use. (Reinking v. County of Orange, 9 Cal.App.3d 1024, 1030, 88 Cal.Rptr. 695.) The State argues the court should have made a specific finding on the reasonable foreseeability at the time of the Ward deed of the damages later claimed by the Mehls. At the trial the State requested findings, but it did not request any specific finding on foreseeability nor did it object to the proposed findings for lack of a specific finding on foreseeability. A specific finding on each material issue is unnecessary when the findings as a whole clearly show the court's views on all material issues. (Kaneda v. Kaneda, 235 Cal.App.2d 404, 413, 45 Cal.Rptr. 437.) Here, the court found that plans for a drainage system were not complete in 1959 and that the Wards had not been told of, did not know about, and had not intended to waive the damages that might result from the subsequent construction of a drainage system; from such findings it is readily inferable that the court considered the damages resulting from the subsequent construction of a drainage system as not reasonably foreseeable.

Statute of Limitations and Claims Statute. The State next contends the Mehls were foreclosed from claiming damages by their failure to comply with the one-year claims statute (Gov.Code, § 911.2) and with the three-year statute of limitations (Code Civ.Proc., § 338, subd. 2). They filed their claim against the State in November 1969, and their cross-complaint in May 1970.

On this point the State's contention is not persuasive. The taking asserted in this action consists of the channeling of a flow of extra water onto the Mehl property. The date the taking occurred is not necessarily the date on which the period of limitation and of claims started to run. ‘Only when the consequential damage is sufficiently appreciable to a reasonable man may we hold an owner to a duty of expeditiously pursuing his remedies.’ (Oakes v. McCarthy Co., 267 Cal.App.2d 231, 255, 73 Cal.Rptr. 127, 142.) The State argues the taking became appreciable when freeway drainage construction was completed in 1965, or at the latest when a frontage road providing renewed access to the Mehl property was opened in 1966. But the court found that the Mehls first became aware of the drainage system in 1969, and that prior to that time they had been unable to accurately determine the nature and extent of the taking. Ross Mehl testified that he purchased this unimproved property for long-term investment purposes and had no reason to visit the property after his purchase. In February 1969 the County advised Mehl it intended to construct a drainage system across the property to handle the flow of water from the freeway culvert. Mehl then visited the property, inspected the State's culvert, and observed evidence of drainage flow onto his property during recent heavy rains. This testimony provides a substantial basis for the court's findings (Oakes v. McCarthy Co., 267 Cal.App.2d 231, 256, 73 Cal.Rptr. 127), which in turn support the conclusion that the claim and the cross-complaint had been timely filed.

Evidence and Instructions. The State contends it took none of the Mehl property, that the County bears sole responsibility and liability for the drainage system constructed on the Mehl property, and that instructions on causation, on damages, and on property taken were inadequate.

We disagree with the State's assessment of the evidence of taking. The Mehls presented evidence that the freeway construction directed more drainage flow onto the property at a higher speed in a more concentrated location than had been the case before the construction of the freeway. This evidence supports the finding of a taking of property as a consequence of the freeway construction, a taking that damaged the value of the Mehl property to some extent.

However, we agree with the State's contention that confusion in the evidence and in the instructions led to an award of damages for the taking of property in an amount not supported by the record.

First, although the State was responsible for increased drainage flow onto the Mehl property, it was not responsible for natural drainage flow onto the Mehl property, nor was it responsible for inadequate or ill-advised steps taken by the County to deal with both the increased flow caused by construction of the freeway and the pre-existing natural drainage flow across the Mehl property. The County chose to build an open dirt down the middle of the Mehl property. Instructions to the jury on damages were formulated only in general proximate-cause terms, and they failed to make clear the division of responsibility and liability between State and County. (Holtz v. Superior Court, 3 Cal.3d 296, 304, fn. 9, 90 Cal.Rptr. 345, 475 P.2d 441; Van Alstyne, ‘Inverse Condemnation: Unintended Physical Damage,’ 20 Hastings L.J. 431, 435–438.)

Second, the only evidence from which the jury could make a rational apportionment of damages between the State and the County came from the Mehls' appraisal expert, William Holabird. He estimated the State's share of total damages at sixty to eighty percent. However, he offered no factual foundation for this estimate, and his testimony regarding severance damages was based entirely on the nature, location, and alignment of the open dirt ditch constructed by the County. On the issue of apportionment his testimony did not qualify as substantial. Additionally, his estimate was admitted in evidence over valid objections that it had not been previously disclosed to the State and that it violated pretrial discovery orders. (Swartzman v. Superior Court, 231 Cal.App.2d 195, 203–204, 41 Cal.Rptr. 721; Nestle v. City of Santa Monica, 6 Cal.3d 920, 929, 101 Cal.Rptr. 568, 496 P.2d 480.)

Third, even if we assume that substantial evidence supported the jury's verdict—an assumption about which we have doubts—the Mehls received a double recovery for whatever property of theirs had been taken. Holabird estimated the value of the taking as of September 1971, yet the court awarded interest on the judgment from June 1965 The Mehls thus received six years' interest on an amount that already included the same six-year appreciation in the value of the property. The court instructed the jury to evaluate the property as of 21 September 1971, but in an inverse condemnation action the property taken should be valued at the time of taking, in this case 1965. (Conlin v. Southern Pacific Railroad Co., 40 Cal.App. 743, 745, 182 P. 71, C.E.B., Condemnation Practice in California, p. 55; see also Klopping v. City of Whittier, 8 Cal.3d 39, 46, 104 Cal.Rptr. 1, 500 P.2d 1345; cf. Code Civ.Proc., § 1249.)

Finally, it is clear that as a result of improper jury instructions as to what property had been taken by the State and what liability had resulted from the taking, the jury put together unrelated, arbitrary items of damage to reach is inverse-condemnation award against the State. It subtracted a preliminary County appraisal of the County's taking ($22,872), an appraisal which itself included severance damages, from an appraisal of total State and County damages by Holabird, as corrected for an apparent error in calculation ($105,620), to reach what in effect amounted to severance damages for the State's taking ($82,745).

Because of these errors a retrial of the cross-complaint is required in order to determine the proper amount of damages under suitable instructions based on probative evidence.

The judgment on the cross-complaint is reversed, and a new trial is ordered on the issue of damages.

FLEMING, Associate Justice.

ROTH, P. J., and BEACH, J., concur.