188 P. 832 | Cal. Ct. App. | 1920
Plaintiff brought the action to recover from defendant the sum of three thousand dollars, as damages caused by obstructions to a highway by means of a ditch constructed therein and sand thrown from said ditch into the highway, and to have said obstructions removed. A jury, called to pass upon the question of damages, awarded plaintiff $150 and she was given judgment for that amount and costs. As to the remaining issues, the court made findings of fact and conclusions of law and entered judgment in accordance therewith. Plaintiff appeals from the whole of said judgment on the judgment-roll alone.
The following findings will sufficiently indicate the matters in dispute: It was found that defendant is a public corporation organized and existing under the laws of the state of California; that, for more than seven years last past, plaintiff has been the owner and in possession of lots *140 14 and 15 of the Oakdale Syndicate Tract, in Stanislaus County, as per the official map of said tract filed for record in the office of the county recorder on the first day of April, 1890.
"5. That along the southerly boundary of" said lots "there is laid out and dedicated by said map so filed, as aforesaid, a public highway, used by the public for highway purposes, forty feet in width, which plaintiff and her employees have used as a means of ingress and egress to said lots . . . ever since her ownership of same or since the twenty-ninth day of March, 1911.
"6. That said public highway is the only means of ingress and egress to plaintiff's property.
"7. That during the months of July and August, 1915, defendant entered in and on the said public highway and constructed an irrigation ditch along the center of said highway" from a certain point to a point "beyond the westerly boundary line of lot 14 of plaintiff's property.
"8. That during the month of December, 1917, defendant enlarged and cleaned out said irrigation ditch and threw the dirt upon the enbankments of same in such a manner as to entirely obstruct the whole highway" between the points above mentioned.
"9. That said ditch is constructed in sandy soil, and in the cleaning and enlarging of said ditch, great quantities of coarse, white sand were thrown out on each side of said ditch completely obstructing said highway and making same impassible for loaded animal or motor drawn vehicles of any kind and preventing the ingress and egress of plaintiff to her said property.
"10. That plaintiff's property is planted to alfalfa and almond-bearing nut trees, and produces large crops of alfalfa hay and almond nuts.
"11. That it is necessary at different times to go upon said lands of plaintiff with horses and farming implements to take care of the irrigation ditches located thereon and to cultivate, prune, and spray the said almond trees and to cut, rake, and haul the alfalfa grown on said lands and harvest and haul to market the almond nuts and hay grown thereon.
"12. That by reason of the obstruction of said public highway by defendant plaintiff is prevented from going *141 upon her said lands and taking loaded vehicles to and from said lands over said highway.
"13. That said irrigation ditch is of a width at the top of from twenty to thirty feet and of a depth of four feet, with embankments thrown out on either side of said ditch, all of which embankments and ditch are located in the highway mentioned in plaintiff's complaint."
It was also found that an allegation in the answer that plaintiff consented to the construction of said irrigation ditch in said highway was untrue.
The judgment is: "1. That plaintiff recover $150 damages.
"2. That the sand deposited in the road . . . by the defendant . . . from said irrigation ditch is a nuisance and that said nuisance be abated.
"3. That the public rights have intervened as to the ditch and that same cannot be abated as a nuisance.
"4. That plaintiff, by reason of the conveying to her and her predecessors in interest of" said lots "has acquired an easement on said highway but that said easement is subordinate to the public rights of the Oakdale Irrigation District, in reference to the maintenance of said irrigation ditch in said highway.
"5. That the road in question . . . is a public highway.
"6. That plaintiff have her costs of suit."
The defendant is a public service corporation, engaged in distributing water to the public for farming and domestic purposes within the territory to which the water from its ditch is available. From the findings it appears that the defendant's ditch was constructed over and along the portion of the highway to which it is alleged in the complaint it constitutes an obstruction in the year 1915. The complaint here was filed by the plaintiff on June 18, 1918, approximately three years after the ditch had been constructed and presumably in active operation. Thus it is clear that the portion of the highway over and along which the ditch was constructed, and which portion, according to the complaint, is thus so far obstructed as to prevent vehicles from passing over it to and from the plaintiff's place, had, long before plaintiff made any complaint in reference thereto, or objected to the maintenance of the ditch at that point on the highway, been taken for and devoted to a public use. In other words, according to the findings, *142 which we must presume were authorized by the evidence, the plaintiff remained passive and made no protest at the time of the construction of the ditch at the point on the highway referred to and remained so and still made no objection to the construction of the ditch until after it had been fully completed and was being operated as an irrigating ditch.
[1] It is plain to us that the facts of this case bring it squarely within the cases which hold that, where property is taken for a public use by a public service corporation and the owner of the property has not in an appropriate way objected to its being so taken, but has, by silence or quiescence, permitted the public use to be inaugurated and carried on for some period of time, he has thus waived or lost his right to proceed against such use of his property by ejectment or abatement. In such case, if he has suffered damage to his property by reason of such taking and use of his property, he is, of course, entitled to be compensated in damages. The constitution expressly gives him this right (Const., art. I, sec. 14), and such right in the plaintiff here is not denied by the respondent. But, in the case stated, the owner is restricted to the relief which is obtainable in an action for damages. The theory of the rule as above stated is that after property is taken for a public use by a public service corporation and has been devoted to that purpose, the public thereby and thereupon acquires rights in such public use which cannot be divested or destroyed at the behest of a private individual upon the ground or for the reason that his property will suffer damage or deteriorate in value, or even become valueless for the purposes to which it is peculiarly adapted and for which it has always been used, by reason of the act depriving him of such of his property rights as were necessary for the installation and prosecution of the public use.
In Crescent Canal Co. v. Montgomery,
Again, the late chief justice further said in that case: "The plaintiff is the agent of the state in the administration of a public use (Const., art. XIV, sec. 1), and is within the protection of the principle of the decision, and of the authorities cited in Fresno St. Ry. Co. v. Southern Pacific R.R. Co.,
In Gurnsey v. Northern California Power Co.,
In Miller Lux v. Enterprise Canal Land Co. etc.,
The case of Eltinge v. Santos,
No point is made here that the compensation awarded plaintiff for damages sustained by her by the act of the defendant in invading her property rights in the manner described is inadequate. The abatement of the ditch was properly denied on the doctrines enunciated and applied in the cases above considered and referred to.
But plaintiff further contends that the judgment is inconsistent with the findings and that it is uncertain and ambiguous. It is not necessary to follow in detail the ramifications or course of reasoning to which learned counsel for the plaintiff resorts to support this contention. It is considered quite enough to say that a comparison of the judgment with the findings and the plaintiff's complaint will show that there is no inconsistency between the findings and *146 the judgment or any uncertainty or ambiguity in the judgment. The complaint alleges: "That during the month of December, of the year 1917, defendant enlarged and cleaned out said irrigation ditch and threw the dirt upon the embankments of same in such a manner as to entirely obstruct the whole highway, from the intersection of said before-mentioned public highway with Central Avenue, of said Oakdale Syndicate Tract, running westerly along said avenue, and in front of plaintiff's property, to the western boundary line of lot 14 of said tract. That said ditch is constructed in sandy soil, and in the cleaning out and enlarging of said ditch great quantities of coarse, white sand were thrown out on each side of said ditch, completely obstructing said highway and making same impassible for animal or motor drawn vehicles of any kind and completely preventing the egress and ingress of plaintiff to her said property."
The court found those allegations to be true and that to that extent the defendant was maintaining a nuisance and thus had trespassed upon or infringed the plaintiff's property rights, and obviously upon those findings the court awarded damages to the plaintiff and decreed the abatement of the nuisance so maintained. This is as far as the findings and the judgment go, so far as the plaintiff's rights are concerned. They, in other words, found and decreed that there was a total obstruction of the highway resulting from the dumping thereon by defendant from its ditch, when in December, 1917, it enlarged and cleaned out the same, of large quantities of dirt and sand, and that such obstruction constituted a nuisance, and abated it. Then the findings declare and the judgment decrees that, public rights having intervened by reason of the construction of the ditch, no action by an individual would lie to abate the maintenance of the ditch. There is no inconsistency between the latter finding and the judgment in that respect and the adjudication of the plaintiff's rights, as found and decreed by the court and above referred to. Counsel argues, however, that the finding and that part of the judgment decreeing that plaintiff has an easement in the highway and the finding and that part of the judgment declaring that the ditch cannot be abated are irreconcilably inconsistent, because, as he asserts, the ditch and its bank *147 cover the entire width of the highway and that the mere removal only of the sand dumped upon the highway from the ditch when the ditch was enlarged and cleaned out would not make the highway suitable for use as such. But the findings do not show that the entire width of the highway is covered by the ditch. From finding 7 it appears that the ditch runs along the center of the highway, and we cannot assume, in the absence from the record of evidence touching that proposition, that the ditch itself covers the whole width of the highway. To the contrary, the presumption is, under the state of the record before us, that there was evidence which supports the theory of the findings and so show that the plaintiff could, with the removal from the highway of the sand and dirt dumped there by defendant when in 1917 the ditch was enlarged and cleaned out, enjoy her easement in or right to the use of the highway for all the purposes which the exigencies of her business as a farmer and fruit-grower might require.
Without further consideration of the matter, we hesitate not to state our conclusion to be that a careful examination of the findings and the judgment in comparison with the averments of the pleadings will show that the complaint that there is an inconsistency between the findings and the judgment, or that the judgment is ambiguous and uncertain in its terms, is without foundation.
No reason appears to us for disturbing the judgment appealed from, and it is, accordingly, affirmed.
*148Ellison, P. J., pro tem., and Burnett, J., concurred.