Anderson v. County of Santa Cruz

WOOD (Fred B.), J.

Plaintiffs are Sidney and Marie Gandrup, owners of certain real property that was damaged by fire, and K. Anderson, assignee of an insurer who reimbursed the Gandrups for a portion of their loss. They claim that the alleged damage was the proximate result of the spread of fire from a drainage ditch operated and maintained by the defendants across the Gandrup property. They seek to hold the defendant county under the Public Liability Act, and the other defendants (employees of the county) for negligence in the setting and supervision of the fire along the county’s ditch right of way.

The verdict of the jury was for the defendants. Plaintiffs have appealed, claiming insufficiency of the evidence, errors in the giving and refusing of instructions, and erroneous denial of their motion for a new trial.

(1)

Does the evidence support the

verdict?

Yes.

The ditch extends north and south through plaintiffs’ land. A section was cleared by burning conducted by two county employees. One of them cut the weeds and grass with a scythe. The cuttings would fall into the bottom of the ditch. The other workman, using mobile water sprinkling equipment, sprayed the bank before the burning and the ashes after the burning. They burned for a distance of only about 10 feet at a time. They worked in this fashion on the morning of October 11 and again on the morning of October 13. They returned in the afternoon of each of those days, made an inspection and found no sign of fire. They repeated such inspections about five times, at intervals, between the 13th and the 26th of October, 1954, the day of the burning of plaintiffs’

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property. Upon each such occasion, they found no sign of fire in the ditch. There was evidence that this method of burning was standard approved practice. A burning permit had been obtained and the nearby forestry station had been notified of the general area in which the burning would be done. Such evidence would support an inference of non-negligence upon the part of the county employees.

In thus cleaning the ditch, the defendants started near plaintiffs’ north line and proceeded about 800 feet southerly where they encountered water in the ditch and stopped. This point was about 450 feet north of the spot where plaintiffs claim the fire of October 26 started. The topsoil is underlaid by a peat formation, through which, according to plaintiffs’ theory, the fire traveled underground. But there is evidence that it would travel only about 414 feet in seven days and that the peat could not burn longer than 10 days without igniting the dry grass and weeds on the surface. Also, three eye-witnesses testified that on October 26 the fire started in an area south of plaintiffs’ property, considerably west of the ditch, well over one thousand feet south and west of the southerly end of the burned section of the ditch. This evidence would support a finding that the defendants’ ditch-burning was not the cause of the fire that burned plaintiffs’ property on the 26th of October.