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Youngblood v. City of Los Angeles

California Court of Appeals, Second District, Third Division
Feb 9, 1961
10 Cal. Rptr. 729 (Cal. Ct. App. 1961)

Opinion

As Modified on Denial of Rehearing March 9, 1961.

Hearing Granted May 3, 1961.

Opinion vacated 15 Cal.Rptr. 904.

Harold W. Kennedy, County Counsel, Lloyd S. Davis, Deputy County Counsel, Los Angeles, for appellant.

N. E. Youngblood and Marvin Gross, Beverly Hills, for respondent.


BISHOP, Justice pro tem.

We would not reverse the judgment in plaintiff's favor for just a technical error in the record, but the failure to observe the line between liability and freedom from liability is not a technical error just because the line is finely drawn, and it is because of such a failure that we are setting the judgment aside.

This is the second judgment in this case, the first one being a judgment of nonsuit entered in favor of the then defendants: the City of Los Angeles, Max Rosenberg and Sons and the Los Angeles County Flood Control District. On appeal, the judgment in favor of the two defendants first named was affirmed, but that against the Los Angeles County Flood Control District was reversed, with the direction that the plaintiff be permitted to amend his complaint. Youngblood v. City of Los Angeles, 1958, 160 Cal.App.2d 481, 325 P.2d 587. He did so, with the Los Angeles County Flood Control District the only defendant; a demurrer to the amended complaint was overruled; considerable evidence was taken upon the trial, much of it the basis for conflicting inferences; findings 15 Cal.Rptr. 904. The action is one for damages due to erosion to the lower portion of plaintiff's property on which his house is built. A natural water course--dry most of the year, but in flood on January 15, 1952,--adjoins plaintiff's property. On the date mentioned, the amended complaint alleged, there existed 'a partially completed double pipe and wire revetment in said waterway * * * which revetment had been engineered and constructed by the defendant * * * and was managed, maintained and controlled by said defendant.' For some inexplicable reason, the defendant in its answer denied that it engineered, constructed, or maintained the revetment, but it admitted in the pre-trial statement that these facts were true and they were found to be true. The revetment was constructed some distance downstream from plaintiff's place, its upper end being between 50 and 150 feet below his property.

The allegations of paragraph V of the amended pleading were denied by defendant's answer. We quote this paragraph and the finding relating to it: 'It is true that during the rainfall of January 1952, and on of about January 15, 1952, the revetment which was built, managed and maintained by the defendant Los Angeles County Flood Control District became clogged with debris either in the revetment channel itself or with debris which accumulated in front of the revetment and adjacent thereto, and as a proximate result thereof water was diverted from the natural waterway and waterflow onto plaintiff's land, causing erosion and loss of soil, all to plaintiff's damage in the sum of $9000.00.'

It will be noted that there is no causal connection alleged, between the construction and maintenance of the revetment and the erosion of plaintiff's property. The significance of this omission will be emphasized when, in a moment, we come to consider the law established by the decision on the previous appeal. We first point out that the silence of the amended complaint respecting any connection between any act of the defendant and plaintiff's damage was not broken by the issues remaining in dispute, as agreed upon by counsel and adopted in the pretrial order: '(1) Proximate cause. (2) Nature and extent of damages. (3) Whether or not plaintiff was contributorily negligent. (4) Whether or not plaintiff was maintaining a nuisance with reference to the fill on his property and the trees standing thereon. (5) Police power.'

At the previous trial the plaintiff attached much significance to the act of the Flood Control District in removing a fallen tree from the path of the flood water. With this foreword we quote at some length from the opinion on the former appeal (Youngblood v. City of Los Angeles, supra, 1958, 160 Cal.App.2d 481, 487, 325 P.2d 587, 590-591): 'We have concluded that the removal of the tree is not the event which creates liability (if any there be) upon the Flood Control District. It plainly appears that the waters would have met and, creating a whirlpool, have eaten away plaintiff's land if the tree had not fallen. Upon the facts disclosed by this record the district would be prima facie liable in inverse condemnation because its uncompleted revetment diverted the waters from their natural flow onto plaintiff's land and to its damage. It is immaterial whether the construction of the revetment was negligent or the design defective or well conceived; when it directly caused damage to plaintiff's land the District became liable. This is the doctrine of Bauer v. County of Ventura, supra, 45 Cal.2d 276, 289 P.2d 1; Ward Concrete Products Co. v. Los Angeles County Flood, etc. Dist., supra, 149 Cal.App.2d 840, 309 P.2d 546, and other cases. Bauer says, 45 Cal.2d at page 283, 289 P.2d at page 5: 'It is well established that the diversion of water from its natural course resulting in damage to adjacent property is actionable. * * * But to escape liability the improvements At the close of the first trial the plaintiff asked leave to amend his complaint to conform to proof, and the denial of his motion was one reason for the reversal. His complaint, as amended, does not allege that the revetment that the defendant constructed in any way diverted the waters from their natural flow onto plaintiff's land. Improvements, per se, do not impose liability; they may 'follow the natural drainage of the country or the natural stream.' The defendant was not responsible for any debris that the stream was carrying in flood. Was it the fault of the revetment that the debris collected and diverted the water upon plaintiff's land? It was not so found. The debris may have been caused to accumulate 'in front of the revetment and adjacent thereto' without any fault of commission or omission on the part of the defendant. The diversion of the water was found to be the 'proximate result' of the accumulation of debris not of the construction or maintenance of the revetment.

Without a causal relation between the defendant's construction of the revetment and the damage to plaintiff's land plaintiff's case fails. As held in Bauer v. County of Ventura, 1955, 45 Cal.2d 276, 283, 289 P.2d 1, 5: 'If the property owner would have no cause of action against a private citizen on the same facts, he can have no claim for compensation against the state * * *.' in inverse condemnation. To the same effect see: Anderson v. County of Santa Cruz, 1959, 174 Cal.App.2d 151, 156, 344 P.2d 421, 425; and Kambish v. Santa Clara Valley Water Conservation District, 1960, 185 Cal.App.2d 107, 8 Cal.Rptr. 215. Had a private party built the revetment in question he would not be liable for flood damage to plaintiff's lot unless (1) the revetment diverted the waters from their natural course or (2) caused the debris to accumulate and so caused the water to cut into his land. Neither of these facts is found to have taken place.

The question of interest may again arise. Our state seems to have become aligned with those that hold that in a case such as this, interest should run from the date of the damages. Heimann v. City of Los Angeles, 1947, 30 Cal.2d 746, 758-760, 185 P.2d 597, 604-605. We do not read County of Los Angeles v. Lorber, 1958, 158 Cal.App.2d 804, 813-814, 323 P.2d 542, 543, as in conflict with that conclusion.

Under the pre-trial conference order, one of the issues was 'proximate cause.' If he mere words 'proximate cause' stated an issue to be tried, it was the issue created by the answer's denial of the allegation of the second amended complaint that 'said revetment became clogged with debris, and as a proximate result thereof water was diverted onto plaintiff's land.' It was as to this 'proximate cause' that the trial court made a finding. Because the case has been fully tried, it does not appear to be necessary to require a new trial under the circumstances. Cf. Spaulding v. Cameron, 38 Cal.2d 265, 270, 239 P.2d 625; McEwen v. Taylor, 106 Cal.App.2d 25, 33, 234 P.2d 754. For the reasons stated the judgment is reversed and the cause is remanded to the trial court with instructions that from the evidence already taken the court make a specific finding as to whether the revetment as constructed and maintained was a proximate cause of the overflow onto plaintiff's land, and thereupon render judgment in accordance with its findings on the issues of fact presented.

VALLEE, Acting P.J., and FORD, J. concur.


Summaries of

Youngblood v. City of Los Angeles

California Court of Appeals, Second District, Third Division
Feb 9, 1961
10 Cal. Rptr. 729 (Cal. Ct. App. 1961)
Case details for

Youngblood v. City of Los Angeles

Case Details

Full title:N. E. YOUNGBLOOD, Plaintiff and Respondent v. CITY OF LOS ANGELES, a…

Court:California Court of Appeals, Second District, Third Division

Date published: Feb 9, 1961

Citations

10 Cal. Rptr. 729 (Cal. Ct. App. 1961)