Rosenow v. Three-Arch Bay Ass'n

BARNARD, P. J. This is an action for damages for the loss of a beach house constructed on a cliff along the waterfront in South Laguna, in a tract known as 1 ‘ Three-Arch Bay. ’ ’ In 1945, the plaintiffs purchased a lot in this tract from the defendant bank acting as trustee. This was a steep lot, some 110 feet long, running from what is known as “Bay Drive” to the ocean. In 1949, they erected a summer home, with wooden ramps leading up the hill to Bay Drive. In September, 1951, during the dry season they noticed a crack which had appeared in the hillside between their house and Bay Drive. This crack was about 8 feet wide, and was alarming enough to cause them to discuss it with a neighbor. On January 17, 1952, Mr. Rosenow received word that this crack was widening and he drove to Laguna Beach to inspect the property. He found that the crack then extended across his property, across a neighbor’s property, and to a third property. On the night of January 17 a heavy slide of land [504]occurred and the- whole hillside slipped toward the ocean, badly wrecking the plaintiffs’ house and other improvements.

This action was brought against the Three-Arch Bay Association, the bank referred to, and two individual defendants. The complaint alleged that the Three-Arch Bay Association had diverted upon plaintiffs’ property large quantities of accumulated water which would not naturally flow thereon, which caused this mass slide of the earth and resulted in this damage; that the defendants owned, operated and controlled facilities in and upon Bay Drive, a private street, by which waters were collected thereon which would not naturally flow upon plaintiffs’ property, and also owned, operated and maintained a culvert and storm drain near plaintiffs’ property for the purpose of discharging these waters into the ocean; that the defendants had so negligently constructed, operated and maintained these facilities as to cause a great quantity of water to be discharged upon plaintiffs’ land which would not naturally flow or drain thereto; that this discharge of water upon plaintiffs’ land caused this earth slide; and that as the proximate result of the negligence and unlawful conduct of the defendants the plaintiffs’ house was destroyed. These allegations were all denied by the defendants. At the conclusion of the plaintiffs’ case motions for nonsuit as to each of the defendants were made and granted, and the plaintiffs have appealed.

The appellants concede that the nonsuits were properly granted insofar as the two individuals are concerned. They contend, however, that nonsuits were improperly granted as to the defendants Three-Arch Bay Association and the bank; that the evidence would have supported judgment in their favor against those defendants; and that the trial judge, in ruling on the nonsuits, weighed the evidence instead of assuming the truth of that portion which was favorable to them.