Atkinson v. State of California

SEAWELL, J.

Appellant and respondent, acting by and through the department of engineering, entered into a contract whereby the former undertook to construct the embankment for a section of the state highway under construction between Coalinga and Fresno, beginning on said highway at engineer’s station No. 439 and concluding at station No. 1071, a distance of approximately twelve miles. The plan of construction called for a twenty-four foot roadway, consisting of a fifteen-foot center strip of concrete and dirt shoulders four and one-half feet wide on each side of the pavement. The earthen shoulder or embankment was required to slope outward from the concrete pavement, a distance of four and one-half feet, at the ratio of one and one-half feet horizontal to one foot perpendicular, which grade is known to engineers as a one and one-half to one slope. The earthen shoulders were constructed wider than called for in the contract and instead of having a drop of nine and one-half inches at the outer edge, as per contract, they were built at a grade almost level with the pavement, which added a much greater yardage of earth to the embankment than the appellant was required by his contract to supply. Appellant was not allowed any compensation for furnishing and placing this excess material, which, it is claimed, approximated 12,110 cubic yards of earth. The claim was disallowed on the theory that said resident engineer did not authorize the appellant to depart from the plans and specifications in the particular referred to and if

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he had attempted to authorize a departure therefrom it would not have been effective, inasmuch as no request was first made to the commission for the performance of said work, nor was it done in obedience to a written order from the highway engineer of the department of engineering, prerequisites essential to give validity to any change or modification of the plans and specifications after the execution thereof. The second cause of complaint is placed upon the ground that the department of engineering adopted an unfair method of estimating the capacity of the excavation or borrow-pits which previously had been disturbed by flood waters. The demand of appellant for the excess herein claimed over the final estimate made by the department some five months prior to the day appellant filed his claim against the state is 23,741.5 cubic yards, amounting to approximately $26,000.