Slaback v. Wakefield

GRIFFIN, P. J. Plaintiffs-appellants, husband and wife, brought this action against defendant-respondent for claimed damages as a result of certain improvements to a roadway (designated as Lots A and B) in a tract of land laid out and dedicated by the owner-subdivider for the use and benefit of adjoining lot owners in the tract located in the foothills of eastern Orange County and used primarily for mountain homes. The general terrain was rough, wooded and brushy. Silverado Creek flowed through this tract and lands owned by plaintiffs which are designated as Parcels 1, 2, and 3, on a map marked plaintiff’s Exhibit 3 in evidence. Defendant owned [41]Lots 24 to 33 inclusive, designated on said Exhibit, which are located south of plaintiffs’ lots on a higher level. They sloped toward the intersecting roadway across plaintiffs’ lots located at a lower level to the level of the said Silverado Creek. Lots A and B (the tract roadway) were unimproved at the time the events occurred which are the basis of plaintiffs’ complaint. Each owner of lots in the tract was given the right to use said tract roadway for road purposes, including necessary slope easements for cuts and fills adjoining said roadways. Lot A (the roadway) extended over Silverado Creek and connected with Silverado Canyon Road, a paved public highway, at the time the tract map was filed, and no bridge crossed over said creek.

In 1952, defendant, desiring to make his lots available for sale, improved the roadway on Lot A, to which his lots adjoined, and erected a bridge over said creek, on Lot A, making his and other lots, including plaintiffs’, accessible to Silverado Canyon Road. He made certain necessary cuts and fills in grading the roadway for general use and built a small bridge over said creek, all on Lot A. The fill that approached the bridge was about 4 feet at its highest point above the surface of plaintiffs’ lot and was about 30 feet south of the bridge. Plaintiffs’ adjoining lot has two levels, the lower level being that part affected by the fill. This fill forms the basis of plaintiffs’ first claimed cause of action based on the theory that defendant barred plaintiffs from the free use of egress and ingress to their property.

The second cause of action arises out of claimed damages by reason of change of natural drainage waters flowing over a cliff located on the rear of one of defendant’s lots and thence traveling northerly in a well-defined channel across it to Lot A (the roadway) and thence across plaintiffs’ lot to the creek. It appears that defendant, as an addition to the improvements to the roadway, laid pipe in the bed of this channel, on his land, from a point below the waterfall to a standpipe in front of defendant’s lot and near the southerly edge of Lot A (the roadway) thus protecting his land from open flow of flood-waters and allowing him to level his lot for a building site. Later he laid a pipeline under the roadway to plaintiffs’ land and plaintiffs, by arrangements with defendant, and with full knowledge of the size of the pipe used and improvements installed, connected his pipeline to it and ran the water across plaintiffs’ land to the creek, thus eliminating any surplus flow of the water over plaintiffs’ land to the creek.