Opinion
Hearing Granted July 18, 1940.
Appeal from Superior Court, Los Angeles County; Frank G. Swain, Judge.
Action by Agatha Archer and others against the City of Los Angeles, etc., and others, and by James L. Allison against the City of Los Angeles, etc., and others to recover damages resulting from overflow of storm waters. From adverse judgments, plaintiffs appeal.
Affirmed COUNSEL
Dempster & Dempster, J.H. Creighton, and Jerrell Babb, all of Los Angeles, for appellants.
Ray L. Chesebro, City Atty., Frederick von Schrader, and Leon T. David, Asst. City Attys., and Howard E. Crandall, Deputy City Atty., all of Los Angeles, for respondent City of Los Angeles.
J.H. O’Connor, Co. Counsel, S.V.O. Prichard, Asst. Co. Counsel, and J.F. Moroney, Deputy Co. Counsel, all of Los Angeles, for respondent County of Los Angeles.
Hibbard & Kleindienst, of Los Angeles, amici curiae in support of appellants.
OPINION
DORAN, Justice.
This is an action for damages resulting from the overflow of storm waters upon the plaintiffs’ property located in Venice, California, a suburb or part of the city of Los Angeles, due to the construction of a series of drainage systems built and maintained by the defendants.
The action involves the history of the entire drainage area of what is known as La Ballona creek, an area in the westerly part of Los Angeles county approximately 12 miles square, containing 134 square miles, bounded on the north by the Hollywood hills, on the south by the Baldwin hills, on the east by Vermont avenue, in the city of Los Angeles, and on the west by Sepulveda canyon and the Pacific Ocean. Within the area above mentioned is included the towns of Culver City, Beverly Hills, Palms, a portion of the defendant city of Los Angeles and a portion of the defendant county of Los Angeles. The defendant Los Angeles County Flood Control District includes the entire described area.
A report of the board of engineers of the flood control, to the board of supervisors of Los Angeles county, on July 27, 1915, and in evidence as plaintiffs’ exhibit No. 55, contains the following description of the area in question:
"*** The drainage of this basin is vague and ill-defined, the valley of Ballona Creek itself being the only clearly marked drainage system in it. It is fed from the canyons of the Santa Monica and Cahuenga Mountains and from the run-off of the City of Los Angeles. The run-off from the canyons is torrential in character, carrying a considerable amount of detritus with it and has built up the debris cones or bench land of Hollywood and the region westerly thereof.
"After leaving the canyons, these washes have no refined channels, but wander at will except as controlled by street improvements or other obstructions, later spreading over the flat area south of Sherman and Colegrove and finally finding their way into the Cienegas at the head of Ballona Creek, east of Ivy Station. The run-off from the four canyons spreading over the flat lands about Sawtelle, finally finds its way into the lower part of Ballona Creek, south of Palms. The run-off from the canyons west of Sepulveda Canyon passes southward through Santa Monica directly into the ocean, and is, therefore, not a part of the Ballona Creek drainage.
"Centinela Creek, which has a drainage area of 7606 acres of 11.9 square miles, empties into Ballona Lagoon from the east near the mouth of Ballona Creek.
"While the Santa Monica Mountains are chiefly sedimentary in origin, consisting of sandstones, shales and conglomerates, the hills back of Hollywood are largely of disintegrated granite. They are, therefore, more absorbent than the higher mountains elsewhere in the county. For this reason, and because of their lower elevation, the gravel cones at their base have a less extent than elsewhere and are of finer material.
"Because of the high percentage of shale in the mountains, the uplands formed by the material washed therefrom in the westerly part of the basin contain a large proportion of clay. It is, however, to be noted that the southern slope of the mountains is longer than the northern, and facing the ocean has a greater precipitation than the northern slope of the mountains, toward the San Fernando Valley. The soil close to the foot of the hills while loose and porous with much granite sand, yet has a large percentage of clay from the disintegrated shales of the mountains and grades southward to a dense black soil of adobe.
"The soil of the valley of Ballona Creek, including the marshes extending northward from its mouth is of dark loam with a considerable percentage of humus. This is due to the fact that these soils are or have been moist lands covered with a dense natural growth, whose decay has resulted in its present condition. Because of the preponderance of shales in the Santa Monica Mountains, the soil resulting from its decomposition has more clay than that in the Coastal Plain eastward. The downward percolation from the surface flow is, therefore, materially less than elsewhere.
"There is, moreover, a considerable underflow of the Los Angeles River westward, bringing the water plane near the surface at the Cienegas. All of this tends to decrease the percolation and increase the run-off.
"The basin received no water from the high mountains, except such as enters it from the Los Angeles River through underflow. With this exception, therefore, it is dependent on local rainfall and the run-off from the southerly slope of the Santa Monica Mountains."
A layman probably would characterize the above-described area as a valley about ten miles wide lying between the Baldwin hills on the south and the Santa Monica mountains on the north, and extending inland from the Pacific Ocean on the west about twelve miles, the floor of which valley consists of low rolling hills that drain into what is known as La Ballona creek, a watercourse that skirts the foot of the Baldwin hills and empties into the Pacific Ocean. In its natural state, water from the rains flowed down the canyons of the Santa Monica mountains and spread over the deep detrital cones at the mouth of the canyons, which constituted absorptive areas. The water that was not absorbed by these areas spread out over a series of cienegas, and during periods of heavier rainfall eventually found its way into La Ballona creek. Manifestly, during this early period, the progress of water flowing through and across the area toward its lowest point was comparatively slow. In its undisturbed state, at and for some distance back from where it empties into the Pacific Ocean, La Ballona creek was a marsh, subject to periodic inundation by extremely high tides. It is in this last-mentioned area that plaintiff’s properties are located.
About the year 1905, the land now owned by a majority of the plaintiffs was reclaimed. Canals were dug and a community known as Venice was created. This was a private enterprise. Lands owned by the other plaintiffs are in the same area and are approximately at the same level.
Thereafter, over a period of years, the city of Los Angeles gradually extended westward. The land was subdivided, streets and boulevards were established, graded and paved throughout almost the entire area, and the valley above described became more or less thickly populated. As the development progressed, the natural drainage channels were retained and the runoff from the streets, highways and boulevards drained into the natural water-courses that always had existed in the valley. During heavy rains, by reason of the varied and extensive building construction that prevented the natural absorption of waters, and by reason of the many streets, highways and boulevards that afforded a rapid delivery of water, the various channels that emptied into La Ballona creek were taxed to capacity. In order to accommodate these channels to the rapid runoff of storm waters they were converted into what are known as storm drains, that is to say, concrete conduits were built in the channels to facilitate the runoff of storm waters. In all, some sixteen storm drains were constructed. As the result of these improvements, the flow of the storm waters was rapid, and as a consequence greater volumes of water in a much shorter period of time flowed into La Ballona channel than the channel, under natural conditions, had received.
In 1933 a storm, unprecedented by comparison with rainfall records of previous years, flooded the channel and caused the damage about which plaintiffs complain.
Plaintiffs’ cause of action is based on the contention, as the complaint in the action alleges, that as a result of the drainage system constructed by defendants, the surface waters, falling and collecting upon the above-described area, "have been and now are diverted from their natural flow and collected into said large underground conduits and the said underground laterals to said conduits, which are and were emptied into said ditch, and said waters are no longer permitted to spread out over said strip of land commonly known as La Ballona Creek as it heretofore did do, and said surface waters are no longer permitted to find their way slowly to the Pacific Ocean as they theretofore did before said drainage system was built and constructed, but said surface waters were and now are confined to said large underground conduits and their underground laterals and said artificial ditch, hereinabove described. That as a result of said artificial drainage system the said surface waters upon said drainage area are diverted, concentrated and accelerated to such an extent that when they arrive at a point near Venice, the La Ballona Lagoon, hereinabove mentioned and described, is not of sufficient size to properly carry said waters, so diverted, concentrated and accelerated, into the Pacific Ocean, and as a result of said inadequacy in size of the ditch, hereinabove described, and said La Ballona Lagoon and the obstructions therein, as hereinabove described, the storm waters rise to a tremendous height and overflow Venice to such an extent that the waters during heavy rain storms stand from six to eight feet in and about Venice."
The "obstructions" above referred to, as further alleged, are bridges, pipe lines, pilings and an oil derrick which it is alleged, were "permitted *** to be placed in and about said ditch and lagoon" by the defendants.
It is further alleged, in additional causes of action, in substance, that the above-described drainage system which caused the damage was built by defendants for a public use and purpose and that plaintiffs received no compensation for the damage suffered, as contemplated by article I, section 14 of the Constitution of the state of California; that the drainage system was built without due regard for the rights of plaintiffs pursuant to a plan that was inherently wrong and defective, in that the storm waters exceeded the capacity of the La Ballona channel into which it flowed; that the defendants intentionally diverted surface waters by artificial means in increasing quantities and collective force, "which diversion of said storm waters caused plaintiffs’ property to be overflowed"; that the defendants permitted "obstructions" in the channel without taking the necessary precautions for the escape of storm waters flowing therein.
At the commencement of the trial it was stipulated that the issue of liability should be determined first. At the conclusion of plaintiffs’ showing on this issue the trial judge granted defendants’ motion for a nonsuit, from which order and the judgments entered thereon, plaintiffs appeal.
It is urged by appellants that the opinion in the matter of Archer v. City of Los Angeles et al., 15 Cal.App.2d 520, 59 P.2d 605, one of the consolidated actions herein, is the law of the case. The contention is without merit. The appeal in that action was from a judgment entered after the demurrer of the defendants was sustained without leave to amend. The opinion merely determined that the complaint in the action was good as against a general demurrer. The decision by the trial judge in the instant case upon the motion for a nonsuit was based upon the authority of San Gabriel Valley Country Club v. County of Los Angeles, 182 Cal. 392, 188 P. 554, 557, 9 A.L.R. 1200, which was an action for the recovery of damages for injury alleged to have been done to plaintiff’s land by the construction of certain storm drains by the defendant county, and to enjoin the further use of such drains. The contentions there were substantially the same as appellants’ contentions here, with regard to which the opinion recites:
"The plaintiff’s position is, and must necessarily be, that the owner of land through which a watercourse passes has the right to have the stream flow by exactly as it would naturally flow and may complain of any increase of volume, no matter how caused, providing only it be caused by artificial means. But this position is directly opposed to the decisions of this court that a riparian owner may construct embankments or levees along the bank of the stream to prevent the overflow and erosion of his land. [Citing cases.] *** But the purpose is a lawful one, and the decisions mentioned determine that no cause of action arises merely because of what is a necessary incident of the accomplishment of this purpose. ***
"The present case is not wholly analogous to those just mentioned, but the reason for it is much the same and is indeed stronger. Not to permit an upper land owner to protect his land against the stream would be in many instances to destroy the possibility of making the land available for improvement or settlement and condemn it to sterility and vacancy. Such a rule would seriously interfere with the development of the country. Because of this and because of the necessity of permitting the utilization for drainage of the means afforded by nature for the purpose, a very great preponderance of the decisions in other states go further than it is necessary to go in this case and hold that a riparian owner has no right to complain because the volume of water in the stream is increased by artificially draining surface waters into it above, provided only the stream is the natural drainage channel for the lands so drained. Furthermore, this rule is adopted regardless of whether the so-called common-law rule concerning surface waters prevails in the particular jurisdiction or, as here, the civil law rule, which forbids the gathering together of surface waters and discharging them as a stream upon adjoining lands. If the surface waters are gathered and discharged into the stream which is their natural means of drainage, so that they come to the land below only as a part of the stream, it is held that no action lies because of their being added. [Citing cases.] Mr. Freeman in his note in 85 Am.St.Rep. 727, reviews very thoroughly the authorities dealing with the right to accelerate or diminish the flow of water, and upon the particular point under discussion says (page 733): ‘We have just noticed the difference between merely draining onto another’s land, and draining into a natural channel or water course, which flows across such land. So far as streams or natural water courses are concerned, there can be no doubt that one can drain into them, and thereby increase their volume without subjecting himself to liability for any damage suffered by a lower owner.’
"If a riparian owner cannot complain if surface waters be actually added by artificial drainage above to the volume of the stream, it must certainly be that he cannot complain of a drainage improvement which adds no water to the stream, but merely protects the adjoining lands against the water already in it. The cases in which this exact question is presented are not many, but so far as we have been cited to them they all, with one possible exception, so hold. [Citing cases.] ***
"Our conclusion is that an improvement for the purposes of drainage of lands above does not give a lower riparian owner on the stream a cause of action merely because the improvement increases the volume of water coming to his land in the stream with the incidents necessarily accompanying such increase of volume, but without affecting the stream in any other manner. Such is the present case.
"There remains, however, one point which should be discussed. It is frequently stated, and some decisions perhaps hold, that the rule that no action lies simply because of an increase in the volume of a stream caused by improvements for drainage above is subject to the limitation that thereby the natural capacity of the channel be not exceeded; that is, that the lands below be not flooded. It does not appear from the findings in the present case whether the plaintiff’s land was flooded or not. What does appear is that a considerable portion of it was washed away. This may well have happened without the land being actually overflowed. But, however this may be, we are of the opinion that no such limitation should be adopted. On the one hand, the authority for it consists largely of dicta and casual statements, and, on the other hand, it is wholly impracticable and in many cases destructive of the rule on which it is supposed to be only a limitation. This is very clearly pointed out and the limitation rejected in Mizell v. McGowan, 129 N.C. 93, 39 S.E. 729, 85 Am.St.Rep. 705."
After quoting from the Mizell case, supra, the opinion continues: "The reasons so stated may be multiplied many fold. To them also may be added the query: Why should there be any difference between injury done by flooding and injury done in any other manner by an increase in the volume of the stream. *** Summing up the discussion, our conclusion, as we have stated, is that an improvement for the purposes of the drainage and protection of lands above does not give a lower riparian owner on the stream a cause of action merely because such improvement increases the volume of water in the stream as it comes to his land, even though the burden he is necessarily under of protecting his land against the stream is thereby increased and his land is injured because of his failure to meet such increased burden, and further that the rule is not subject to the limitation that the increased volume must not be such as to make the stream exceed the capacity of its channel." San Gabriel V.C. Club v. County of Los Angeles, supra.
Appellants undertake to distinguish the facts in the San Gabriel Club case, supra, from the facts in the case at bar. It may be conceded that the facts are not identical but nevertheless a resemblance is presented, sufficient in degree to warrant the conclusion that the law applicable to one is likewise applicable to the other. As to each, the cause and effect are the same. Hence the law established by the San Gabriel Club case is controlling as to the issues involved in the within appeal.
In giving consideration to the arguments advanced by appellants it should be emphasized that evidence of any diversion of water from its natural channel anywhere in the area involved is entirely lacking. It should be noted also that there is no evidence of negligence on the part of defendants in connection with the manner or form in which the storm drains were constructed. In addition to the foregoing it is also important to note that the so-called "obstructions" hereinbefore referred to were not installed or erected by defendants or either of them but, to the contrary, were installed or built by individuals or corporations not parties to the within action.
Appellants’ contentions are incorporated in the following argument quoted from the briefs:
"The evidence also discloses that such storm waters in their natural manner of want to flow lodged in many low flat places, which formed a series of lakes, one right after the other from the beginning of the marsh lands to the ocean, and that the greater portion of the storm waters never reached the ocean at all, but remained in lakes to be evaporated by the sun and absorbed by the ground, and that the portion of the water that did find its way to the ocean traveled very slowly, where the outlet in those days at the ocean was adequate to discharge the storm waters that came to it, without flooding Venice.
"By December 31, 1933, and January 1, 1934, the natural drainage system had been changed by the hand of man (the Defendants) from the natural state above described to that of a very fine, high speed drainage system designed to carry the storm waters from the watershed of La Ballona Creek drainage area to the ocean in a very small space of time, which resulted in the collection and concentration of the storm waters of such drainage area into a swamp and marsh area just south of Venice much faster than the old natural outlets to the ocean could possibly carry, and in addition thereto the defendants greatly impaired the principal natural outlet into La Ballona Lagoon for the carrying of storm waters by the Vista Del Mar bridge and as to the other outlet into La Ballona Lagoon, there being only two outlets into said lagoon, the defendants permitted another bridge to be built across the lagoon, bulk head to be built out into the channel of said Lagoon, and another bulk head to be erected in the channel of said lagoon to protect an oil well that had been drilled in the bed of the natural channel, all of which greatly impaired and obstructed the natural channel and impeded the flow of storm waters on their way to the ocean.
"*** that said artificial drainage system has diverted the surface waters and has accelerated, impounded and concentrated said storm waters to such an extent and in such great quantities that when they arrived at a point near Venice, the La Ballona Lagoon was not of sufficient size to properly carry such waters into the Pacific Ocean. ***
"In the instant case, all of the channel regulation was done in the upper reaches of the Ballona Basin while there was nothing done to take care of the augmented flow from the upper reaches at the outlet into the ocean."
In other words, appellants argue, in effect, that the outlet was inadequate. The fallacy of the argument is at once apparent. An argument that selects one part of the channel, namely, the outlet, and attempts to give to it a fancied or fictitious importance and significance, will not stand the test of logic. One cross-section of the channel is as much a part thereof as any other, by whatever name it may be known, whether it be at the extreme end and known as the outlet or at some other point along the course of the channel and known as the narrows. By either name or at any point, its function is the same as part of the whole. Hence, the contention that the outlet was inadequate means nothing more than the contention that the channel was inadequate. But the evidence in the case fails to establish the inadequacy of the channel in question. What the proof does show, however, is the fact that La Ballona creek is a watercourse or channel that varies in width, and that plaintiffs are owners of land within its course, which, during high water periods and as a consequence of its location and elevation, is subject to inundation. Proof of such conditions does not establish the inadequacy of the channel but merely confirms the natural fact that heavy rainfalls increase the depth of the water in the channel. In the circumstances such conditions are burdens incident to the location of such lands, and the fact that floodwaters during periodic storms therefore spread over a wider area in some parts of the channel than in others gives rise to no cause of action by landowners affected thereby. San Gabriel V.C. Club v. County of L.A., supra.
Whether the so-called "obstructions" above referred to contributed to any material extent to the damage complained of, is doubtful. From a review of the record it is evident that such was the conclusion of the trial judge, although evidence on the issue was conflicting. In any event, as heretofore noted, such so-called "obstructions" were not installed by the defendants or either of them. Assuming for the sake of argument that defendants or either of them in the ordinary routine of governmental affairs issued permits for the installation of the objects now claimed by appellants to amount to "obtructions", appellants point to no authority supporting the contention that because the obstructions were so permitted by defendants, or either of them, liability attached. Manifestly such objects and structures are not hazardous per se. With regard to the duty of the trial judge in connection with motions for nonsuits, it must be conceded that all presumptions are in favor of the plaintiffs upon an appeal from a judgment of nonsuit, and the fact that evidence is conflicting must be disregarded. But in the case at bar it is important to bear in mind that the question of liability as a matter of law, by stipulation of counsel, was submitted for the court’s consideration and was the question and issue in connection with which the motion for a nonsuit was made and granted. The trial court concluded and accordingly adjudged that there was no liability on the part of the defendants. In Anchester v. Keck, 214 Cal. 207, 4 P.2d 934, 937, appears the following: "The rules applicable to motions for nonsuits do not require courts to put themselves in incongruous positions in order to hold a case in court. Courts will not give a strained or unnatural construction to language or conduct, or distort the orderly laws of sequences or the logic of a given situation to force an unnatural result. Looking at the case as presented, and giving the effect to the evidence which in reason it should receive, we are in accord with the conclusions reached by the District Court of Appeal. The evidence as a matter of law is insufficient to support a judgment for appellants."
In the circumstances, the same doctrine is applicable to the case at bar. In the light of the foregoing, it is unnecessary to give consideration to plaintiffs’ other contentions above mentioned.
For the foregoing reasons the judgments entered in the above-entitled consolidated cases, are affirmed.
We concur: YORK, P.J.; WHITE, J.