Woolliscroft v. Starr

FINLEY, J. pro tem.

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At the close of plaintiff’s case, before the court without a jury, defendant moved for judgment pursuant to section 631.8 of the Code of Civil Procedure. The motion was granted and judgment entered in favor of defendants. The plaintiff appeals from this judgment.

Plaintiff and defendants are owners of adjoining tracts of land in San Diego County. A natural watercourse runs through these properties. The channel is dry except when it rains or during the wet season. On defendants’ property, which lies downstream from that of plaintiff, a dam was constructed across the stream in 1949. In 1958 there was an unusually heavy rain. Plaintiff claims that the dam caused the waters to back up, inundating her well and depositing sand and silt on her property. Defendants claim that their

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dam was in. no way responsible for damage caused by the flooding of plaintiff’s property and that any such damage resulted from natural growth in and alongside the stream which caused the velocity of storm waters flowing therein to be impeded to such an extent that over a period of years silt was deposited in the natural channel thus causing waters from the heavy rain in 1958 to spread out and cover plaintiff ’s land.

Plaintiff urges two reasons for reversal. (1) “The trial court erred in granting defendants’ motion under section 631.8 of the Code of Civil Procedure in view of the uncontradicted facts established in plaintiff’s proof.” (2) “That the trial court erred in applying the wrong measure of damages in its consideration of defendants’ motion under Code of Civil Procedure, section 631.8. ”

Code of Civil Procedure, section 631.8 became effective September 15, 1961. The trial of this action was commenced January 29, 1962. That section provides that in a trial by the court the court “shall weigh the evidence” when determining a motion for judgment in defendants’ favor at the close of plaintiff’s case.

In

Estate of Sharff,

219 Cal.App.2d 128 [33 Cal.Rptr. 52] the following language appears at page 132: “We can find no error in the trial court granting judgment to defendants pursuant to the provisions of section 631.8 of the Code of Civil Procedure, since, as indicated, there is substantial evidence from a reading of the letters and testimony received to support the trial court’s decision in this regard. Unlike a motion for nonsuit, where on appeal all intendments are in favor of the appellant, the court, in acting on a motion under section 631.8, ‘shall weigh the evidence’ and its findings are entitled to the same respect as are any other findings of a trial court.”