Truman v. Sutter-Butte Canal Co.

The plaintiff sued the defendant to recover the aggregate sum of $18,000, alleged to he the extent of the damage, measured in money, inflicted upon plaintiff’s orchard by certain acts of the defendant. The issues of fact were tried before a jury, who awarded plaintiff a verdict for the sum of $5,000. Judgment was entered accordingly, and from said judgment defendant appeals.

The defendant is a public service corporation, and owns and operates an irrigation system, “consisting of ditches, dams, pumping plants and other structures,” and serves persons owning lands contiguous to its system with water for irrigating purposes. It takes water from the Feather River and conveys it through its ditches to its various customers in the counties of Sutter and Butte.

The plaintiff owns a tract of 40 acres of land (specifically described in the complaint) in the county of Sutter. Of this tract 26 acres, situated in the northeast corner of the tract, borders upon certain ditches maintained by the defendant for the purposes of its business in the distribution of water to its customers. The said 26 acres had been and constituted, at the time of the damage thereto in the manner claimed and alleged by plaintiff, to be hereinafter explained, a prune orchard of 2,340 trees, 16 acres thereof being set out in three year old trees, and the remainder planted in the month of March, 1921, with trees of the age of one year. The defendant, it appears, prior to and at the time of the damage alleged and complained of by plaintiff, owned and operated, as parts of its irrigation system, two ditches, “touching said above described tract, one on the north side thereof, designated by defendant as Lateral ‘A,’ which, from the northeast corner, touches at all points the north side of said tract, and carries water in a westerly

The damages claimed and asked for by plaintiff are: For the destruction of the trees, $13,200; for the loss of the beneficial use of said land by reason of the flooding thereof,

The answer, after certain formal denials, admits: That for the first time, defendant, in May, 1921, turned water into and through the ditches referred to in the complaint and carried water down said ditches to the vicinity of plaintiff’s said lands, but denies that at the time mentioned that there was carried through said ditches an excessive amount of water; “that it is a fact, however, that, on the 6th day of May, 1921, a small break occurred in Lateral A-3 . . . through which water flowed out and upon plaintiff’s land for a period of not to exceed six hours,” but alleges that the said break was of such a nature as to have been unavoidable in the construction and maintenance of ditches, particularly during the first year of their use, and further alleging that defendant closed the break within a period of six hours after it occurred, and that thereafter “and as soon as defendant could take the necessary apparatus upon the ground, it proceeded to and within a period of not more than twenty-five days from the occurrence of said break defendant caused said water to be pumped off said land, and no more breaks in said ditches or any thereof and no more water escaped from defendant’s said ditches upon any of plaintiff’s said land during said year by breaking of ditches nor did any material or injurious amount of water during said year pass from defendant’s said ditches to and upon plaintiff’s land by any other means whatsoever.” The answer proceeds to allege that the lateral ditch from which flowed the water on to plaintiff’s land, as set forth in the complaint, was maintained along the north line of plaintiff’s land at the request and for the benefit of plaintiff, so that the latter’s land could be irrigated by water from defendant’s said ditch. It is further likewise alleged that “plaintiff had and maintained another ditch or lateral running along the entire south line of his said orchard tract . . . through which he took and received from defendant water

As a special defense, the defendant charges that the overflow of plaintiff’s orchard was wholly occasioned through plaintiff’s own negligence, as follows: That well knowing that the 26 acres of land which he planted in prune trees were entirely unfit for the growing of prune trees by reason of its location or physical relation to his 600-acre tract devoted to rice growing, he carelessly, negligently, recklessly, and without the exercise of ordinary caution and care “set out his said orchard in an unfavorable position and place therefor”; that, upon and after receiving the water furnished him by defendant at his request to be used in the irrigation of the said 600-acre tract upon which he was growing rice, plaintiff carelessly, negligently, and without the use of ordinary care, permitted said rice water so brought and used on said 600 acres to escape “by both surface and subterranean flow over, to and upon said orchard, which saturated and kept saturated the ground in said

Upon the issues as thus framed, the cause was tried and submitted to the jury, with the result as above stated.

Counsel for plaintiff expressly admit in their briefs that the evidence is in substantial conflict upon the claim of plaintiff that the defendant’s negligence in maintaining lateral ditches described in the complaint was a direct contributing cause of the damage to plaintiff’s orchards. It is contended, however, as is to be implied from the defendant’s answer, that such negligence was not the sole cause of the damage, but that much of the injury to the plaintiff’s orchards was due to seepage or a subterranean flow of waters from certain rice-fields situated in near proximity to and south, southeast, and east of the orchards. One of these rice-fields, a tract of approximately 600 acres of land, and situated east of the orchards, belonged to plaintiff. Counsel for defendant also make this statement in their opening brief: “Respondent claimed damage in his complaint in the sum of thirteen thousand two hundred dollars and the jury awarded him five thousand dollars. Of course, we believe that the jury had no right to award any damage at all and that if any were awarded the sum specified by them in their verdict was grossly excessive, but we are also aware of the fact that we are dealing with a matter that went to the jury for consideration. ... We must also admit that the amount of damages awarded, while apparently very excessive, finds some support in the testimony of Mr. Leonard A. Walton.” But while making those admissions, counsel for the defendant, nevertheless, insist that the evidence supporting the verdict was of so slight or unsatisfactory a character as to have made certain alleged errors of law occurring in the course of the trial singularly prejudicial to the substantial rights of the defendant in the trial of the ease. A careful review of the evidence forbids our assenting to that proposition, assuming that there is merit in the con

The evidence shows, as the complaint alleges, that, on the fifth day of May, 1921, the defendant, for the first time after the lateral ditches mentioned in the complaint were constructed, turned into said ditches a flow of water equal to the capacity thereof, that these laterals bordered plaintiff’s orchard on the east and the north, that during the nighttime between the fifth and sixth days of May, the bank of the east lateral, designated in the complaint as “Lateral A-3,” gave way to the pressure of the water, causing a break in said bank covering a space in width of several feet and three and one-half to four feet deep; that the water from said lateral flowed in a large volume over and upon the orchard of plaintiff; that, besides flowing through said breach, water also passed through numerous cracks or interstices in the banks of both laterals; that the water then flowing on the low part of the orchard of plaintiff developed into a large pool, approximately “knee-deep,” and within three days from the time of said break and the overflowing of the water from the said ditches on to and over said orchard, approximately 1,000 prune trees of said orchard were destroyed. One Snyder was, at the time of the break and had been for some time prior thereto, foreman and in charge of plaintiff’s orchard. He testified that, early in the morning of May 6th, he discovered the break and that the orchard was covered with water; that not only was water passing through the break “good and fast,” but was also passing over the banks and through the cracks in the banks for a distance along the lateral of from 120 to 150 feet. This witness stated that he immediately notified the man in charge of defendant’s ditches at the “ditch

The theory of the defense, as has before been stated and as is indicated by the answer of the defendant, is that the use of the .large quantities of water necessary for the growing of rice upon the rice-fields situated not far distant from the plaintiff’s orchards had the effect of raising the subterranean water plane of said rice lands, with the result that the water from that source had continuously flowed underground in such large quantities to the orchards as to destroy the roots of the prune trees, it being a matter of common knowledge that fruit trees require a much smaller amount or acre-feet of water to sustain them than is required in rice culture, and that to give to such trees water much in excess of what, according to their nature, they require will generally result in their destruction. The distance of the rice-fields from the plaintiff’s orchard on the south and west thereof is, according to the evidence, over a quarter of a mile, and the distance of such fields from said orchards on the north is about two and a half miles. It was admitted by defendant’s expert witnesses that the general subterranean drainage from these rice-fields is to the south and west, or, in other words, from the direction of the orchards; but the theory was and is (and the expert witnesses of defendant testified to that effect) that, due to the large quantities of water used on said rice-lands in the two or three years preceding the time at which the break occurred, a water mound developed underground or beneath the surface of the rice-lands, the effect of which was to raise the water plane or table below the ground an average of eleven feet over the whole of the acreage of the rice-lands— some 9,000 acres in the aggregate; that the result of this

[1] Thus it will be observed that the most that can be said of the question whether the damage to plaintiff’s trees was wholly due to the flooding of his land by the water from the defendant’s ditch or was caused by the joint action of the water thus thrown upon the orchard and the percolating waters from the rice-fields is that thereon there existed and does exist a conflict in the evidence. Of course, in that situation, so far as the evidence is concerned, the verdict of the jury, which necessarily implies a finding that the proximate cause of the damage was the negligent acts

[2] We are now brought to a consideration of the alleged errors occurring in the trial of the case. The letter above referred to as having been erroneously, and to the prejudice of the rights of the defendant, admitted in evidence against the latter’s objection, was addressed to plaintiff by Mr. Norton Ware, chief engineer of defendant, and was offered and received in evidence while plaintiff was under direct examination. The letter, after stating that a careful investigation of plaintiff’s “orchard damage” had been made, and describing the conditions existing in the vicinity of the orchard, stating that the land, because of its character and its situation with reference to the rice-fields, is not well adapted to the development of a thriving orchard under the “present irrigation methods in the vicinity” of the orchards, proceeds as follows:

“The value of the orchard has been placed at $185.00 per acre, the total valuation therefore would be $4,865 for the 26.3 acres planted to trees. The Canal Company has contributed to some extent to the general seepage condition in the orchard but the major portion of the damage is due to the.rice irrigation. There is a total of 2,266 trees in the orchard of which 506 are dead and 571 not thrifty, or 47% per cent of the orchard has been damaged. This makes the damage done amount to $2,300. The Canal Company is willing to assume $250.00 of this damage, being the amount of damage due to direct seepage from our canals along and adjacent to the trees affected.”

The specific objection to the introduction óf the letter in evidence was that it constituted an offer by defendant to plaintiff for a compromise and settlement of the claim of damages by the latter for the injury sustained, and that it was, therefore, inadmissible under sections 895, 997, and 2078 of the Code of Civil Procedure. Counsel for plaintiff stated, in reply to the objection, that his sole purpose in offering the letter was to show an admission by the defendant, through an authorized agent, that the defendant did contribute to the damage of plaintiff’s orchard. The court, by its ruling admitting the letter, expressly limited the proof of the contents of the letter to the purpose for which counsel for plaintiff stated that they offered the letter in

The letter was written by Ware a short time after the break occurred and nearly six months prior to the filing of the complaint herein. There is no evidence in the record showing that, at any time, either prior or subsequent to the writing of the letter, or prior or subsequent to the filing of the complaint herein, any negotiations were opened or pending between plaintiff and defendant looking to a compromise or settlement of any compensation which plaintiff might claim for the damage to his orchards. No question was asked plaintiff on cross-examination by defendant’s counsel as to any proposition of compromise having been made or discussed between the parties, nor was Ware, who testified for defendant, asked by counsel for the latter whether any conversations or conferences or negotiations looking to a compromise were had at any time between the parties. If any such conferences or negotiations had taken place prior to the writing of the letter or at any time, it may be assumed that the fact thereof would have been brought out at the trial. The letter "does not contain a direct or definite proposition to settle any claim which plaintiff might make. But, conceding, as well we may, that it contained a proposition to compromise, it did so upon an admission by defendant of liability for the damage, the offer to settle, however, being for much less than was and is claimed by plaintiff, and, therefore, the trial court cannot be justly charged with an abuse of discretion in admitting the letter in evidence as in proof of such admission. The rule in this regard is well stated in Hartford Bridge Co. v. Granger, 4 Conn. 142 , 148, as follows:

“The law on this subject has often been misconceived; and it is time that it should be firmly established. It is never the intendment of the law to shut out the truth; but to repel any inference which may arise from a proposition

made, not with design to admit the existence of a fact, but merely to buy one’s peace. If an admission, however, is made because it is a fact, the evidence to prove it is competent whatever motive may have prompted the declaration. . . . The question to be considered is what was the view and intention of the party in making the admission; whether it was to conceive a fact hypothetically, in order to effect a settlement, or to declare a fact really to exist.”

In Rose v. Rose, 112 Cal. 341 [ 44 Pac. 658 ], an action for divorce, in a letter written by the husband to the wife, the former offered to divide the property as in settlement of their property rights, and described it as community property. The offer of the letter in evidence was objected to on the ground that it was an offer of compromise which was not accepted by the wife. The trial court admitted the letter, however, and on appeal the ruling allowing the letter in evidence was assigned as error and prejudicial, to which the supreme court, through the late learned Judge Van Fleet, replied: “The Court did not err in admitting, on the issue as to the character of the property, the paper signed by the defendant, in which he offered to divide the property and described it as community property. It was admitted solely on the question as to whether the property was community or separate, and for this purpose it was proper as a declaration by the defendant, even conceding that the paper is to be regarded as an offer of compromise.” (See, also, Donley v. Bailey, 48 Colo. 73 -76 [ 110 Pac. 65 ]; Dunlap v. Montana-Tonopah M. Co., 192 Fed. 714 ; Teasley v. Bradley, 120 Ga. 373 , 375 [ 47 S. E. 925 ]; Kennell v. Boyer, 144 Iowa, 303 [Ann. Cas. 1912A, 1127, 24 L. R A (N. S.) 488 , also, footnote at page 489, 122 N. W. 941 ].)

In Batchelder v. Batchelder, 2 Allen (Mass.), 105, it is said that “whether or not such admissions are by way of compromise and to buy one’s peace or are mere admissions of liability and express or implied promises to pay, are primarily questions of fact for the trial court in determining the admissibility of testimony. (See, also, Greenfield v. Kennett, 6 N. H. 419 [ 45 Atl. 233 ]; Langdon v. Ahrends, 166 Iowa, 636 [ 147 N. W. 940 , 941].)

[3] The following instruction, given by the court at the request of plaintiff, is criticised as invading the domain of fact;

“You are instructed that if you find that water escaped through or over the banks of said lateral A-3, or seeped or percolated from or out of such lateral A-3 or other canal or ditch of defendant company, the mere fact of such escape of water as aforesaid, is in itself sufficient evidence to prove negligence on the part of defendant canal company, and if you find that such negligence resulted in damage to the premises of plaintiff ajid to the fruit trees thereon, your verdict should be for the plaintiff for such sum as he has suffered therefrom, not exceeding the sum claimed in the complaint, to-wit, $13,200.00.”

It is said that by giving the above instruction the court practically took the case from the jury. In support of this conclusion the defendant cites a number of cases holding that a canal company is not an insurer against all damages arising from its ditches, but is required to exercise reasonable or ordinary care only in the construction, maintenance, and operation of its ditches, or, in other words, is to be held only to the usual and ordinary course and manner of constructing its irrigating system. (See Nahl v. Alta Irr. Dist., 23 Cal. App. 333 [ 137 Pac. 1080 ] ; North Stirling Irr. Dist. v. Dickman, 59 Colo. 169 [Ann. Cas. 1916D, 973, 149 Pac. 97 ]; Hunt v. Sutter-Butte Co., 66 Cal. App. 363 [ 225 Pac. 884 ].) The cases named hold as counsel for defendant contend, and the court below, in addition to the instruction complained of, also gave instructions in accord with the theory upon which those cases proceed. The instruction under criticism here, however, was based upon and is supported by what the supreme court said in denying a petition for a hearing of the case of Tormey v. Anderson-Cottonwood I. Dist., 53 Cal. App. 559 , 568 [ 200 Pac. 814 ]. The exigencies of this case do not require us to attempt to differentiate, even if it may be done, between the ease just named and the instant case upon the theory of a difference in the facts of the two eases, since it is plainly true that, whether the instruction correctly or incorrectly states the law, in so far as it is applied to this case, the giving of it cannot be held to have worked prejudice as against the defendant, in view- of the fact that it (defendant) expressly admitted liability, at least in part, for the damage of which plaintiff here complains. And this is true, even though such admission was limited, as indicated, since the

[4] The court told the jury that, in arriving at the amount of any damages they might assess against defendant and award the plaintiff, they were “to determine the difference, if any, between the value of plaintiff’s premises, including the growing fruit trees thereon, immediately before they were damaged by reason of the negligent acts or omissions of defendant, if any, and the value of the same premises after they were so damaged, taking into consideration the detriment, if any, resulting by reason of the negligent acts and omissions, if any, of defendant, or certain to result in the future,” etc.

The defendant assails the part of the instruction which we have italicized as so extending the scope of the inquiry as to the damage suffered by the plaintiff as to have justified the jury in taking into consideration, in assessing the damages, some other damage which the defendant might cause to plaintiff’s property by some future negligent acts or omissions in the maintenance of its ditches—that is, damage which might be so caused after the sixth day of May, 1921, and counsel for defendant assert that the “jury probably” so understood it. Save and except the words in italics, the instruction is free from objection. To the extent of those "words, the instruction is awkwardly expressed, to say the least of it. But the court, by those words, undoubtedly intended to say what it said in another of its given instructions, to wit: “ . . . You are entitled to consider not only the damage that has heretofore visibly occurred, if any, to plaintiff’s premises and to the growing fruit trees thereon, but. also the damage, if any, to said premises and to said trees that is certain to result in. the future as the direct and necessary result of the acts or omissions of said defendant,” the language “certain to result in the future,”

The counsel for the defendant in their brief set forth a number of instructions which they submitted, but which the court refused to give to the jury and in this it is asserted that- the court committed prejudicial error. The counsel do not point out that the instructions preferred by them, and refused by the court announced any principles of law applicable to the ease which were not stated in the charge of the court to the jury. [5] All that counsel say in regard to the action of the court in refusing to allow said instructions is that they “should have been given.” This is not sufficient to justify a review of the assignments in that particular. The charge of the court seems to have covered every rule or principle of law pertinent to the issues as made

The judgment is affirmed.

Plummer, J., and Finch, P. J., concurred.

A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 22, 1926.