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Stevens v. 396 Investment Co.5/17/2005
ree.
The testimony of the various witnesses concerning the possibility of, or quantification of, water from other sources was conflicting. Most damaging to the case of 396 and the plaintiffs was the testimony of Clark. Clark opined that the slope failure was caused by rising groundwater, and that the groundwater rose primarily after 1987. Clark further opined that the post-1987 rise was caused by water from several sources including the reservoir, irrigation, leaky pipes, and rainfall. This testimony provides support for Anaheim's contention that water sources other than the leaking reservoir should be considered. However, the testimony of other witnesses emphasized the role of the leaking reservoir in causing the slope failure.
Hendrix opined "that water leaking out of the Olive Hills Reservoir has had a damming and diverting effect on a pre-existing source of water which has caused water levels and pressure to rise." He further explained that " significant quantity of [the reservoir] water is coming into contact with a pre-existing saturated zone at depth. When it does that, it has the effect, because of the significant leakage rate . . . , and the . . . significant mass that that water has, and also the significant fluid pressure that that much water has, it creates in effect a damming condition . . . ." Hendrix continued: "And the presence of this mound [of water], because of its enormous mass and water pressure creates, in essence, a subsurface dam formed out of this huge mass of groundwater, 34 million gallons per year. . . . And it causes a diversion of . . . flow direction. And that diversion the . . . effect of sending the water that normally would move across the slope failure, moving it so that it flows into the slope failure, or instead of across the tract, into the tract." According to this testimony, then, the 34 million gallons of water per year leaking from the reservoir diverted water that would normally flow elsewhere directly into the area of the slope failure.
When questioned as to the pre-existing water source that was diverted, Hendrix indicated that it may have come from rainfall or irrigation, but that he had not done calculations with respect to that water and would not be able to quantify it with any level of certainty. Axten also acknowledged that one could not rule out either irrigation or rainfall as a source of water, but also stated that those sources would not be particularly significant. Moreover, he emphasized that without the water from the reservoir, the slope would not have failed.
Anaheim highlights the testimony of engineering geologist Paul Bogseth. Bogseth expressed an awareness of a source of groundwater emanating from the south and the east. However, he had no opinion as to the source of that groundwater. Nonetheless, upon questioning, Bogseth acknowledged that potential sources could have included rainfall, irrigation, or leaking pipes. At the same time, he also testified that he was not aware of any swimming pool leaks or sewer line leaks in the area and had no evidence that suggested that any such leaks contributed in any way.
Having considered the cumulative and conflicting testimony of the various witnesses, the court, in its Phase I statement of decision, stated: "Weighing all of the evidence the court finds the plaintiffs have, by a preponderance, established the hillside movement was caused by the leakage of 34,164,000 gallons of water per year from [Anaheim's] reservoir. Further the evidence fails to establish the probability that other forces alone produced the hillside movement. Anaheim's `source of water from other areas outside tract 10439 and/or on site water from irrigation or broken pipes' thesi
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