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Wong v. 396 Investment Co.5/17/2005
had been thought when the underdrain system was designed and that the underdrain system was counterproductive for a reservoir with a permeable liner. It recommended abandoning the underdrain system.
The underdrain system was ultimately abandoned. However, Anaheim did not restore the liner to five feet as Cooke had recommended. Instead, the holes in the underdrains were grouted and the system was abandoned in place, leaving only one foot of clay liner in the trenches. The reservoir continued to leak 65 gallons per minute after the underdrain system was abandoned.
The court found that Anaheim was aware of the leakage rate of 65 gallons per minute, yet neither restored the clay liner to its original depth nor gave notice of the dangerous condition to either the City of Orange or adjacent property owners, so any design immunity would have been lost. The court also found that " he abandonment of the underdrain with only one foot of clay liner was not reasonable and exacerbated the ground water pressure problem." As we shall show, substantial evidence supports these findings.
(3) Reservoir Liner Design and Loss of any Design Immunity
LeRoy Crandall & Associates (Crandall) performed a soils investigation before Anaheim undertook to construct the reservoir. In the report of its investigation, Crandall recommended that the proposed reservoir be lined with an "impermeable membrane" composed of shale soils. It stated that the shale material would be best "for constructing this impermeable lining" and "that the resulting seepage through a lining of this material will be extremely low." In December 1960, Boyle Engineering prepared the construction specifications for the reservoir, in which it described the earthen liner as "the compacted impervious layer of fill which is to be placed over natural material surfaces" and stated that it was intended that the earthen liner "be relatively impervious to the free passage of the stored water." Boyle's 1961 construction plans called for a five-foot "compacted earth lining minimum in natural ground." (Capitalization omitted.) In a report prepared in 1964, a couple of years after the reservoir had been constructed, Crandall repeatedly described the compacted soil liner as being "impermeable." It opined that the amount of seepage through the liner was "insignificant."
In 1971, K. G. Barrett prepared a "Memorandum of Design Review" in connection with the Division of Safety of Dams' issuance of a certificate of approval for the reservoir. The memorandum explained that seepage was measured at several locations near the downstream toe of the embankment. Among other things, the memorandum stated that "Manhole No. 1 seepage has been monitored since February 1966 and has gradually increased from an initial 1 gpm to a relatively consistent 3-4 gpm since the end of 1968." The memorandum also estimated " total reservoir seepage of 4 gpm." At the same time, it concluded that "nothing has been disclosed to date which would indicate a serious foundation seepage problem or which would conclusively indicate that seepage is increasing with time."
The significance of the 1964 Crandall report and the 1971 Barrett memorandum is this. The reservoir liner was designed to be "impermeable" and in its first years of operation any seepage was evaluated as being "insignificant." By 1971, however, seepage had increased to an estimated 4 gallons per minute. There was some concern that seepage could be increasing over time, but the evidence was then inconclusive and seepage was not then considered to be a serious problem.
Flash forward to 1986. After the underdrain system was installed, a reservoir leakage problem became app
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