Singh v. Frye

PEEK, J.

Plaintiff appeals from a judgment entered pursuant to a jury verdict in favor of defendant and from the order of the trial court denying his motion for a new trial. The action was brought to recover for damage to plaintiff’s

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peach orchard alleged to have resulted from seepage of water used by defendant in the irrigation of rice.

On appeal plaintiff contends (1) that the evidence does not support the verdict; (2) that the court committed certain errors of law; and (3) that the court erred in denying his motion for a new trial.

We find no merit in plaintiff’s first contention. The record, when viewed as it must be in the light most favorable to defendant-respondent, shows that the orchard was marginal so far as peach culture was concerned, in that it was the most westerly of all orchards in the Sutter County peach belt; that except for the northeast corner the soil was easily compactible clay adobe and not recommended for peach growing; and that the adobe was underlain with hardpan resulting in poor drainage. In nine of the 15 years from 1943 to the trial date, rice had been planted on defendant’s land without complaint. However 1957 was the first year when rice had been planted along the entire length of plaintiff’s northerly boundary. Admittedly the disastrous flood of 1955-1956 covered the orchard with water to a depth of four to five feet; that it remained for approximately two weeks; and that immediately following the drainage of the flood waters heavy rains caused the orchard to look like a “lake.” Altogether the orchard was covered with water for approximately six weeks, and following the flood it steadily deteriorated. Additional expert testimony revealed that even for some time prior to the flood the orchard was slowly dying. Various witnesses testified that numerous trees were dead or dying prior to 1957; in fact an expert from the University of California testified that the orchard had been used for test plots from 1947 to 1956 for lime-induced chlorosis, but that in July of 1956 it was decided to abandon the test plots because the orchard was in such poor condition it could not survive, and hence no further tests could be made on it. There was further testimony that the orchard also suffered from other diseases including collar or crown rot, which was directly attributable to surface water and not from seepage which was the primary cause of sour sap. Furthermore most of the orchard was quite old. Some witnesses stated it to be approximately 20, others at least 30 years old, the life span of a peach tree being 25 to 30 years. It is readily apparent that such evidence was amply sufficient to sustain the verdict of the jury and its implied finding that the damage claimed by plaintiff was not the result of seepage but was the result of the flood of 1955 and the other adverse conditions.