Opinion
For Opinion on Rehearing See 43 Cal.Rptr. 889.
Alfred Nelson, Oakland, for appellant.
Wadsworth & Souza, Tracy, Whitney & Becklund, San Jose, for respondent.
Retired Presiding Justice of the District Court of Appeal of the State of California, First Appellate District, Division One, sitting pro tempore under assignment by the Chairman of the Judicial Council.
Plaintiff appeals from judgment, after jury verdict, in favor of defendant in an action for damages for alleged water seepage from defendant's canal adjacent to plaintiff's property. QUESTIONS PRESENTED
Alleged error in instructions
(a) On inverse condemnation.
(b) On the application of section 22098, Water Code.
(c) On the application of section 22099, Water Code.
(d) On 'equally balanced' evidence.
(e) On mitigation of damages.
RECORD
Plaintiff owns a 300 acre farm, approximately 3 miles west of the City of Tracy. It is one mile long and one-half mile wide. It is all farm land with heavy soil. All of it is leveled for irrigation. He purchased the majority of the property in 1941; and remaining 96 acres in 1949. He testified that when he bought the land there was no high water table apparent or even suspected, and he did not expect to have any seepage trouble from the adjacent canals.
Defendant is in an irrigation district. Two of its canals run across portions of plaintiff's property. They were made with soil and gravel; no concrete lines their walls. The upper main canal extends nine miles and cuts across plaintiff's property at the southwest corner of the field. The lower canal extends seven miles and cuts across the property at the northeast corner. The two canals run water continuously each year from about March 1 to about November 1.
The farm is leased to tenants who have grown sugar beets, tomatoes, alfalfa, corn, barley and flax. It seems to be conceded that the water table on plaintiff's land has risen and on 115 acres thereof is high and that water stands almost continuously on a portion of it. Plaintiff contends that the water condition is due to seepage from portions of the canals which are within plaintiff's property and also from portions which are off plaintiff's property, and comes underground to plaintiff's property. That in addition to the character of the canals which permit seepage, defendant operated and maintained the canals in a negligent manner. Defendant contended that there was no appreciable seepage from the canals, it was not negligent in their operation or maintenance and that the water condition on plaintiff's property comes from irrigation waters from upslope properties over which the district has no control.
Plaintiff's complaint is predicated on three grounds: negligence, inverse condemnation, and the property owner's rights under section 22098 Water Code. As plaintiff concedes that there is substantial evidence to support the jury's implied finding that the water condition is not due to seepage from defendant's canals, and bases his appeal solely on error in the instructions, we deem it unnecessary to detail the evidence. Suffice it to say that during the 15 days of trial, there was much expert testimony supporting the respective theories of the parties. The jury resolved the evidentiary conflict in favor of defendant.
The transcript consists of 1959 pages of testimony.
INSTRUCTIONS
(a) The Failure to Enlarge on the Instructions on Inverse Condemnation was not Error
Plaintiff complains of the instructions given by the court on inverse condemnation.
The court instructed: 'The plaintiff, Joe M. Lourence, Jr., seeks to hold defendant, The West Side Irrigation District, liable for damages upon one or more of the following grounds,' as first ground it stated alleged negligence in the construction, maintenance, alteration or supervision of defendant's canals within and without the boundaries of plaintiff's lands.
'Second, that as to the construction, maintenance, alteration, or supervision of defendant's canals which lie outside the boundaries of plaintiff's land, defendant has proximately caused damage to plaintiff's property within the meaning of Section 14, Article 'Third, failure of defendant to provide plaintiff with the drainage required pursuant to Section 22098 Water Code.'
The court then stated that it would instruct with reference to the three grounds. It stated that the first ground was that defendant's negligence caused damage to plaintiff's land. For almost three pages of the transcript the court defined and instructed on negligence and proximate cause.
It then said, 'Turning now to the second ground of alleged liability, plaintiff alleges that defendant has, regarding the construction, maintenance, alteration, or supervision of defendant's canals which lie outside the boundaries of plaintiff's land proximately caused damage to plaintiff's property, pursuant to Article I, Section 14, of the Constitution of the State of California. (Emphasis added)
'The applicable portion of that Section provides as follows: 'Private Property shall not be damaged for public use without just compensation having first been made to the owner.'
'This section of our Constitution does not apply to, nor may defendant be liable under this Section for, the damage, if any, caused by reason of the construction, maintenance, alteration or supervision of the portion of defendant's canals which lies within the boundaries of plaintiff's land.' (Emphasis added)
The court then instructed at some length on the third ground of alleged liability failure to provide plaintiff with the drainage required pursuant to section 22098, Water Code followed by quoting Section 22098.
Plaintiff objects to these instructions on the Constitutional provision, on two grounds: First, he points out that the court did not accurately quote Section 14 of Article I of the Constitution. The instruction leaves out the hereinafter quoted italicized portion of said section. The section reads: 'Private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court for, the owner.' Plaintiff then says that because of the omitted language, the jury would conclude that compensation for the asserted damage had already been paid to the property owner.
Secondly, plaintiff contends that it was improper to read the constitutional section pertaining to inverse condemnation without further explanation because, says plaintiff, the jury would not understand that this section means that defendant is liable to plaintiff if water seeps through and damages his land from portions of the canals lying outside his land. He cites People v. Albertson (1944), 23 Cal.2d 550, 587, 145 P.2d 7 and People v. Thomas (1945), 25 Cal.2d 880, 895, 156 P.2d 7 for the proposition that an instruction in the language of a statute is proper only if the jury would have no difficulty in understanding the statute without guidance from the court.
Those cases do not apply because, taking the court's instructions as a whole, it is hard to see how a jury could be confused from the instructions given. The court made it clear that the section only applied to water seeping from the portions of the canals which lie outside plaintiff's property, and that if there was such seepage, defendant would be liable to plaintiff. If the jury found that plaintiff's property was injured because of water seepage from the defendant's canal it surely would have found in plaintiff's favor. Particularly is this so in view of the court's further references to the constitutional section. In discussing damages the court said that if the jury should find by a preponderance of the evidence that plaintiff had been damaged by defendant's conduct it could award plaintiff 'the fair rental value of his land loss [sic] to his use by a high water table, seepage or other damage which you find from a preponderance of the evidence has been caused proximately by the negligence of said defendant or proximately caused under Article I, Section 14 of the Constitution of the State of California.' (Emphasis added) Again, the court instructed that in arriving As proof that the jury was confused by the instructions, plaintiff points to the fact that the jury requested the court to reread the instructions pertaining to the three theories by which the plaintiff could hold defendant liable. Plaintiff cites Graham v. Mead (1958), 159 Cal.App.2d 301, 303, 323 P.2d 1008 for the proposition that the fact that a jury returns to the court room to have instructions reread to it because the jurors are confused, is important in determining whether prejudicial error has occurred. However, in the Graham case the instruction claimed to have confused the jury was an erroneous instruction in the first place. In the present case plaintiff cannot show that the instruction as given was error. Also the foreman stated to the court that the second reading cleared up the ambiguity.
Plaintiff devotes some pages of his brief arguing that under the constitutional section strict liability applies in this case. In Hume v. Fresno Irrigation Dist., 21 Cal.App.2d 348, 354, 69 P.2d 483 and in Powers Farms v. Consolidated Irrigation Dist., (1941), 19 Cal.2d 123, 119 P.2d 717 it was held that an action based on Section 14, Article I of the Constitution of California may be maintained for such damages irrespective of the presence or absence of negligence. Defendant claims that under Archer v. City of Los Angeles (1941), 19 Cal.2d 19, 119 P.2d 1 and other cases the rule of strict liability does not apply to seepage from an irrigation canal. The instructions given here did apply the strict liability rule. As the instructions were most favorable to the appealing party in that they imposed on defendant strict liability and as defendant has not appealed we deem it unnecessary to determine whether the rule of strict liability should apply. The instructions on inverse condemnation which plaintiff claims to have been misleading do not require that the jury find defendant negligent before allowing damages. In fact the instructions do not mention negligence. A reading of all instructions on the subject shows clearly that the jury was being told that the constitutional provision applied to damage to plaintiff's property caused by seepage from the portions of defendant's canals lying outside plaintiff's farm. Not only do the instructions so state but the court points out that the constitutional provision does not apply to damage caused from the portions of defendant's canals lying inside plaintiff's land. It does not seem reasonable that the jury could have been confused as plaintiff suggests. Plaintiff contends also that the court should have defined 'public use' referred to in the instructions. If plaintiff desired such definition, he should have asked for it. Plaintiff offered no instruction on the subject of Section 14, Article I although he offered instructions on the negligence theory. It is well settled that where, as here, correct instructions are given, if a party desires fuller and more elaborate instructions he should present the same to the court or in some manner make known his desire for clearer and more definite instructions, and having failed to do so he cannot complain for the first time on appeal. (See 3 Cal.Jur.2d 645.)
Based on Sutro Heights Land Co. v. Merced Irr. Dist. (1931), 211 Cal. 670, 692, 296 P. 1088.
In Ching Yee v. Dy Foon (1956), 143 Cal.App.2d 129, 140, 299 P.2d 668, the court stated: 'Since the instructions on burden 'In the absence of a request for clarification of given instructions, or that a desired instruction be given, a party is in no position to complain on review of the court's failure to take such action.' Sullivan v. Matt (1955), 130 Cal.App.2d 134, 143, 278 P.2d 499, 505.
Applicable here is Garrison v. Pearlstein (1924), 68 Cal.App. 334, 340, 341, 229 P. 348, 353, where the court said: 'If, as appellants argue, certain phrases should have been defined or explained, the appellants should have asked the trial court to give further instructions defining and explaining the language used in the statute.'
It is hard to see how any of plaintiff's arguments concerning the alleged erroneous nature of the instructions on inverse condemnation can require a reversal. If from all the testimony at trial the jury felt that plaintiff's property was injured and the cause was defendant's canals, then they would have returned a verdict in his favor. It cannot be said that the instructions were erroneous or that they misled the jury.
(b) There Was No Error in the Instruction on the Application of Water Code Section 22098.
The court instructed:
'Whenever it appears necessary to drain any land within a district on account of the irrigation which has been done or which is intended to be done by the district under laws relating to it, whether for the purpose of more beneficially carrying on the irrigation or to protect the district from liability by reason of the irrigation, its board, if it is reasonable from an economic standpoint that the drainage be provided, shall provide for the drainage.' (This is basically the wording of Water Code § 22098.)
'In order for a land owner to show that an irrigation district has not followed its duty under this law, he must establish three propositions by satisfactory and sufficient evidence:
'First, he must prove that his lands are in need of drainage made necessary by the irrigation operations of the district.
'Second, he must affirmatively show that the installation of said drainage is reasonable from an economic standpoint.
'Third, he must prove that the steps taken by the district toward discharging this statutory duty do not constitute a reasonable compliance with the requirement of the statute.'
Plaintiff first argues that it was reversible error to instruct that the jury might find for plaintiff only upon proof by 'satisfactory and sufficient evidence.' In a civil case the degree of proof is a preponderance of the evidence and not proof to the satisfaction of the jury. (Perrett v. Southern Pacific Co. (1946), 73 Cal.App.2d 30, 38, 165 P.2d 751.) While the use of the phrase 'satisfactory and sufficient evidence' was perhaps unfortunate, when considered with the other instructions on burden of proof, it cannot be held to be prejudicial. First, it should be noted that the trial court was referring to the type of evidence which must be used to establish the preponderance in the jury's minds. This was not referring to the degree of conviction which should exist with the jury before they could render a verdict favorable to plaintiff. The judge instructed the jury in the commonly used instruction on burden of proof. (See B.A.J.I., J.I., Inst. #21, p. 63.) This instruction speaks of carrying the burden of proof by a preponderance. The trial judge also instructed the jury that : 'The burden of proving, by a preponderance of the evidence, any one or more of said grounds for liability is upon the plaintiff.' This instruction was given just before the trial judge explained the three theories of liability.
The phrase used in Bandoni v. Walston (1947), 79 Cal.App.2d 178, 179 P.2d 365 which the court held erroneous is entirely distinguishable from that in the instructions here. There the court instructed that if the In Perrett v. Southern Pacific Co. (1946), 73 Cal.App.2d 30, 38, 165 P.2d 751, 756, the jury was instructed that the defendant could be held liable only 'upon proof which satisfies your mind that the plaintiff's injuries were proximately caused by some negligence upon its part.' (P. 38, 165 P.2d p. 756.) Apparently this and another instruction to the effect that there had to be a 'satisfactory foundation in the testimony for a conclusion' (P. 39, 165 P.2d p. 756) seem to be the only instructions on burden of proof. In our case, in view of the other instructions the jury could not have been misled by the criticized instruction.
Plaintiff complains of the three propositions which the trial judge instructed the jury to find before section 22098 of the Water Code could be applied to the case. 'First, he must prove that his lands are in need of drainage made necessary by the irrigation operation of the district.' This needs no discussion because it is elementary that the statute only applies to lands in need of drainage. 'Second, he must affirmatively show that the installation of said drainage is reasonable from an economic standpoint.' This also needs no discussion because the statute specifically states that, '* * * if it is reasonable from an economic standpoint that the drainage be provided * * *'
'Third, he must prove that the steps taken by the district toward discharging this statutory duty do not constitute a reasonable compliance with the requirement of the statute.' Plaintiff argues that he should not carry the burden of proving that the district did not take 'steps' in furtherance of 'reasonable compliance' with the statute.
Plaintiff's argument against the instruction centers around two Code of Civil Procedure sections, 1869 and 1981. Section 1869 states:
'Each party must prove his own affirmative allegations. Evidence need not be given in support of a negative allegation, except when such negative allegation is an essential part of the statement of the right or title on which the cause of action or defense is founded, nor even in such case when the allegation is a denial of the existence of a document, the custody of which belongs to the opposite party.'
Section 1981 states:
'The party holding the affirmative of the issue must produce the evidence to prove it; therefore, the burden of proof lies on the party who would be defeated if no evidence were given on either side.'
From these code sections plaintiff turns his argument to the proposition that it is not incumbent upon him to prove a negative. This argument is without merit. In regard to section 1869 of the Code of Civil Procedure it could be said that the burden is upon the party having in form the affirmative allegation. However, legal scholars say that this is not an invariable test, nor even always a significant circumstance; the burden is often on one who has a negative assertion to prove. (See 9 Wigmore § 2486, p. 274.) In fact such has happened in California. (See Zuckerman v. Underwriters at Lloyd's (1954), 42 Cal.2d 460, 473, 267 P.2d 777. A plaintiff suing on a life insurance policy containing a suicide clause must prove that the insured did not commit suicide.)
The instruction given in the case at bench is substantiated by Sutro Heights Land Co. v. Merced Irr. Dist. (1931), 211 Cal. 670, 296 P. 1088. The Sutro case was an action for an injunction against the defendant prohibiting it from permitting water to flow or seep through its canals upon the plaintiff's lands; for the abatement of a nuisance, and for damages alleged to have been already sustained by reason of seepage of water upon the plaintiff's lands from '* * * Whether in a particular case a landowner in the district can invoke the aid of the court to compel the district to perform the duty imposed upon it by the statute would depend upon the facts of that the District, then your finding must be at least which must be established before a court would be justified in issuing the mandate requiring the district to perform the duty of providing drainage. The first of these is that the landowner in the district must prove by satisfactory and sufficient evidence that his lands are in need of drainage made necessary by the irrigation operations of the district; and the second is whether the district is acting under the power conferred upon it by the statute and is doing all within its power to perform the duty enjoined upon it by the statute.' (P. 700, 296 P. p. 1100; emphasis added)
'We will now pass to the second of the two propositions stated above, and in its consideration we will endeavor to determine what steps, if any, the defendant has taken toward discharging the duty enjoined upon it by the statute to drain plaintiffs' lands, and whether the same have been such as to constitute a reasonable compliance with the requirements of the statute.' (P. 701, 296 P. p. 1100; emphasis added)
The language of the Supreme Court is almost the same that was used in the instruction given the jury in the case at bench. The instruction on section 22098 was not error.
There is some evidence which shows that defendant did take steps to see that plaintiff would get his lands properly drained. Defendant has worked out a system whereby it puts up half the cost for the construction of the drainage ditches and the farmer provides the other half. The farmer is subsequently reimbursed up to one-half of his expended share by the U.S. Soil Conservation Service. Plaintiff was advised of this procedure several times but refused the District's help. Other farmers in the area did utilize the District's plan and subsequently restored their property to productivity. The only reason which plaintiff gave for not participating in the plan was because he felt that drainage ditches would not work as long as the upper canal was not lined with concrete. Yet there was evidence that plaintiff's neighbors who did participate in the program have exactly the same type soil and the drainage program works well for them.
(c) There Was No Error in the Instruction on the Application of Water Code Section 22099.
The instruction complained of is:
'No drainage need be provided for land as to which the district is relieved from liability for seepage or flooding by reason of grant, waiver, prescription, statute, decree, or condemnation.' (§ 22099)
This instruction was given immediately after the instruction on Water Code section 22098. It is clear from reading the entire instructions on this theory of the case that the reading of section 22099 to the jury was designed to aid them in finding whether section 22098 was applicable to the plaintiff's case. Section 22098 and 22099 are closely related. Section 22098 cannot be applied to an irrigation district if section 22099 can be invoked. Both parties stipulated that plaintiff's predecessor in interest granted two strips of land on the property in question to construct the canals, for which the District paid the land owner. It would be proper for the jury to decide whether or not defendant District should be relieved from a duty to construct drains or from liability for seepage by reason of grant, waiver, prescription, statute, decree, or condemnation.
Plaintiff attacks the instruction on the theory that it allows the jury to find for defendant regardless of its negligence in maintaining and operating the canals. This is without merit. The trial judge gave extensive instruction on negligence. Section (d) There Was No Error in the 'Equally Balanced' Instruction.
The instruction complained of is:
'The law does not permit you to guess or speculate as to the cause of the damage to the plaintiff's land. If the evidence is equally balanced on the issues of negligence, proximate cause or the statutory liability of the District, then your finding must be against the plaintiff on that issue.'
Plaintiff complains that this instruction forced him to prove by a preponderance of the evidence that the defendant did not take proper steps in discharging its statutory duty to reasonably comply with section 22098. As pointed out before the plaintiff must show that defendant did not take steps towards reasonably complying with section 22098. If plaintiff carries the burden of proving this point then he must do so by a preponderance of the evidence.
(e) There Is No Error in the Instruction on Mitigation of Damages
The court instructed the jury as follows:
'A person whose property has been damaged by the wrongful act of another is bound to exercise reasonable care and diligence to avoid loss and to minimize the damages, and he may not recover for losses which could have been prevented by reasonable efforts on his part or by expenditures that he might reasonably have made.'
Plaintiff assails this instruction on the grounds that it compels a land owner to take reasonable precautions to prevent the adjoining canals from seeping water on to his property. Plaintiff relies on Kleinclaus v. Marin Realty Co. (1949), 94 Cal.App.2d 733, 211 P.2d 582. In that case water seeped through an embankment, built to create a pond, and resulted in the flooding of the plaintiff's field. The plaintiffs had a drainage ditch running through their field which if it had not been stopped up would have allowed the seeping water to run off his land thereby causing him no harm. In regard to the issue of plaintiffs blocking their ditch and thereby allegedly contributively causing their own injury, the court said:
'We are satisfied to hold that plaintiffs were not obliged to anticipate the negligent flooding of their land by defendants and that their permitting the drainage ditch to become clogged before the flooding started cannot constitute contributory negligence. If they had chosen to fill up the drainage ditch deliberately before the danger from flooding by defendants' negligence occurred they would only have been exercising the rights of an owner to use his land in any lawful fashion.'
This rule of the Kleinclaus case is not applicable to an instruction on the issue of mitigation of damages. In fact the rule pertains only to contributory negligence. The instruction complained of refers to mitigation of damages. Actually Kleinclaus, supra, supports the court in giving the instruction on mitigation of damages. There the court, after holding that the plaintiff was not guilty of contributory negligence in clogging a ditch on his own land before defendant negligently flooded plaintiff's land, said: 'The most that can be said is that when plaintiffs discovered that the culvert was clogged they may have been under a duty to clear it out to mitigate their damages. Their land was then already invaded by the water negligently cast upon it by defendants, but the duty to mitigate damages exists alike in cases of breach of contract and tort, wilful as well as negligent.' Plaintiff, while under no obligation to assume that seepage water would come on his land or to protect against such happening, was obligated to use reasonable care and diligence to mitigate damage caused by defendant's unwarranted acts, if there were any. The instruction given is (B.A.J.I. 179-A).
There was no error in the instructions given.
Judgment affirmed.
SULLIVAN, P.J., and MOLINARI, J., concur.