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Wong v. 396 Investment Co.5/17/2005
oceedings against the plaintiff, seeking to acquire a strip of property over the plaintiff's land for freeway construction purposes. Attached to the complaint were right-of-way maps showing the location and size of the drainage facilities for the proposed freeway. A right-of-way agent met with the plaintiff and informed him of the nature and location of the proposed drainage system. The drainage system was actually completed two months before a stipulated judgment in condemnation was entered. About a year after the entry of the stipulated judgment, an unusually heavy rainstorm caused flood damage to the plaintiff's property. The plaintiff thereafter filed suit against the state, seeking damages.
The trial court denied the plaintiff any recovery and the appellate court affirmed. (Ellena v. State of California, supra, 69 Cal.App.3d at p. 251.) The court observed that the plaintiff had both actual and constructive notice of the drainage plans before the stipulated judgment was entered and that he could not subsequently claim damages "for the reasonably foreseeable consequences of the construction and maintenance of the drainage facilities . . . ." (Id. at pp. 256, 259.) In addition, the court cited the testimony of two engineers who stated that the soils erosion on the plaintiff's property "was reasonably foreseeable, even to a layman . . . ." (Id. at p. 257.) The court concluded that " ne need not possess the expertise of a hydraulic engineer to foresee" the resulting erosion and that that there was substantial evidence to support the trial court's finding on foreseeability. (Id. at pp. 257-258.)
In the case before us, in contrast, Anaheim has cited no evidence showing that the Santiago Land Co. or its predecessors in interest had seen any plans or specifications for the proposed reservoir. In particular, there is no evidence to indicate that they had any information on any anticipated leakage from the reservoir. Anaheim has pointed to absolutely no evidence to indicate that the Santiago Land Co. or its predecessors in interest should have anticipated that the reservoir would leak 34 million gallons of water per year, thereby jeopardizing the condition of their remaining property.
Anaheim disputes this characterization of events. It harkens back to the testimony of Kulikowski to the effect that the seepage was not unusual for a reservoir with an earthen liner and to the opinion of Cooke that the seepage was small. We have already addressed this issue at length. The documentary evidence shows that the five-foot earthen liner was intended to be "impermeable" and that any leakage was anticipated to be "insignificant." There is substantial evidence to support the trial court's finding that the leakage of 34 million gallons of water per year, for more than a decade, was not reasonably foreseeable at the time the Santiago Land Co. sold the property to Anaheim.
Anaheim insists this cannot be the case. It cites Sutro Heights Land Co. v. Merced Irr. Dist. (1931) 211 Cal. 670 for the proposition that seepage from an earthen lined reservoir is reasonably foreseeable as a matter of law. Anaheim mischaracterizes the case.
In Sutro Heights Land Co. v. Merced Irr. Dist., supra, 211 Cal. 670, the plaintiffs and their predecessors in interest conveyed rights of way across their lands for the construction of irrigation canals. (Id. at pp. 680-681.) They did so with knowledge of a report warning that seepage from the earthen canals would cause a serious drainage problem that could be solved by lining the canals with cement. However, they did not require that the canals be lined as suggested in the report. (Id. at pp. 695-697.) Moreover, they were insistent that the unlined cana
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