Dufour v. Henry J. Kaiser Co.

DRAPER, P. J.

Two actions for property damage were consolidated for trial and on appeal. Jury verdict was for defendant in each case, and plaintiffs appeal from the judgments.

Plaintiffs’ business is the raising of trout for sale. Plain

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tiff Dufour owns the land upon which these businesses are conducted, including springs which furnish water used in Dufour’s operation as well as that of Hansen, who leases part of the Dufour property. Prom these springs, the land slopes upward, and defendant owns the higher ground immediately adjoining that of Dufour.

The watershed draining into plaintiffs’ springs area consists of some 606 acres in two canyons. A coffer dam was constructed by defendant in Canyon No. 1, and no damage from runoff of that canyon is here claimed. Some 326 acres drained into Canyon No. 2, runoff from which is claimed to have caused the damage which is the subject of this action. Of this total area, 32 acres were owned by defendant. In preparation for quarrying sand, defendant had removed the vegetation from 10 acres, and had stripped the topsoil from

3

of the 10.

Heavy rains fell in this area September 17 through 19, 1959, with some 8 inches of rainfall in one 24-hour period. Sand was washed down Canyon No. 2 into plaintiffs’ springs, catch basin, and fish raceways, killing substantial numbers of fish. There is evidence that defendant knew much earlier that introduction of sediment into the water would kill fish. Plaintiffs seek damages for loss of the fish and for injury to the spring and catch basin.

The trial court gave an instruction on unavoidable accident, in the form set forth in BAJI (4th rev. ed.) 134 (but withdrawn in the 1959 pocket part). In 1958, this instruction was held to be erroneous

(Butigan

v.

Yellow Cab Co.,

49 Cal.2d 652 [320 P.2d 500]). Whether such error is prejudicial depends on all the circumstances of the ease, including the other instructions given