Motzer v. Paoli

JONES, J. pro tem.

This appeal is from a judgment awarding damages for injury to plaintiffs’ property as the result of flooding and the deposit of detritus and debris thereon.

Plaintiffs’ lands are situate in the city of San Bafael and comprise about 3 acres highly improved with drives, gardens, swimming pool and a dwelling. They had lived in this home for 17 years prior to the flooding. The lands of Paoli lie adjacent to and above those of plaintiffs. The Paoli lands were unimproved and for the 17 years that the plaintiffs had occupied their property the water from the Paoli lands had drained down into a natural watercourse and across the property of the plaintiffs. In January 1948, Paoli commenced the construction of roads and streets on his property in the process of developing it into a subdivision. In the course of the construction work he created a fill 12 or 14 feet deep across the watercourse draining the lands of the parties. In the bottom of the fill he installed a drain or culvert. After the fill was made the utility district supplying water to residents in that area laid an 8-inch pipe line across the fill under a right-of-way agreement with Paoli. The fill was made up of loose materials and was dumped without compacting and was in no way reinforced. The roads and drains above the fill were so constructed as to drain areas into the watercourse which under natural conditions did not drain into it. Boadways connected with the fill at each end sloping upgrade away from it in both directions.

In September 1948, Motzer, by letter, called the attention of Paoli to the fact that the culvert under the fill was too small to carry the normal runoff of the water from behind the fill, and that the whole fill would probably wash out. He asked that the situation be corrected. Nothing came of this letter and in January 1949, Motzer had his attorney send

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letters to both Paoli and his engineer in charge of construction calling attention to the drainage situation and demanding that something be done to eliminate the danger. On March 11, 1949, during a rainstorm of normal seasonal intensity the fill went out releasing the water behind it. When the fill went out the water main broke adding its water to the general flood. The property of plaintiffs was deluged and there was left upon it a residue of rocks, sticks, mud and other detritus.