Facts

In January 2005, defendant J. Link Leavens notched the east wall of the watercourse levee running on his property over plaintiff's objection. No flooding occurred in January 2005. Plaintiff Deanne Hobson testified that J. Link Leavens promised to clean out the watercourse. Forty days of dry weather ensued, but there was no clean out and the notch was kept intact or made deeper. In late February 2005, smaller rains come, but the water flooded out of the notch, with most of the water and fine sediment flooding out of plaintiff's lower orchard composed of young lemon trees. The plaintiff claimed trespass and nuisance.

PLAINTIFF'S CONTENTIONS:
The plaintiff contended the defendant intentionally, recklessly, or negligently notched the watercourse levee so as to divert water onto plaintiff's property.

DEFENDANTS' CONTENTIONS:
The defendants notched out of necessity or justification to prevent harm to their orchard, mutual water company equipment and six to seven homes one-half mile away. The defendants claimed the plaintiff was inadequately lemon farming and that damages were only $1,500.

Result

The plaintiff awarded $171,837, to be increased to $255,598. Lost crop profits for two years for $24,369; tree replacement for $59,392; increased costs (labor, pesticides, equipment loss/repair), for $48,288 [trespass]; increased costs for $39,788 [nuisance]. Lost crop profits and tree replacement potentially by the judge in the future.

Other Information

Trial judge denied the plaintiff's motion in limine to submit strict liability theories under the trespass and nuisance counts. Trial judge instructed the jury based on consideration of defendants' actions based on a reasonable totality of circumstances test. The plaintiff will be moving for post-trial recovery of attorney fees under C.C.P. Section 1021.9. FILING DATE: Jan. 27, 2006.

Deliberation

nine hours

Length

11 days