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Karen Crane-Mcnab, Bert Crane, and Mary v. County of Merced

February 8, 2011



This action involves land owned by plaintiffs,*fn1 which they allege has been contaminated by a neighboring landfill operated by the Merced County ("County"). The court held a four-day bench trial, lasting from January 24, 2011, to January 27, 2011. This memorandum constitutes the court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).

I. Factual and Procedural History Plaintiffs own approximately 4500 acres of land ("Crane property") in Merced County to the west of Highway 59. Highway 59 is part of a Caltrans right of way that is approximately 120 to 150 feet wide. To the east of the right of way is a landfill owned by the Merced County Regional Waste Management Authority*fn2 and operated by the County. Most of plaintiffs' claims relate to six lots directly to the west of Highway 59 that are allegedly affected by the landfill.*fn3 Other claims relate to portions of the Crane property further to the west, surrounding Canal Creek and Edendale Creek.*fn4 Cattle grazing is the highest and best use of the Crane property. Permanent crops or buildings are not permitted on most, if not all, of the landfill-related lots. For the past five or six years, 3300 acres of the Crane property have been rented to John McGill for $28 per acre annually for cattle grazing.

The landfill has been in operation since 1973, and consists of three waste disposal areas. Phases 1 through 4, which opened in 1973 and are unlined, are on the southeastern edge of the landfill and are approximately 500 feet from the Crane property at the closest point. Phase 5, which is newer and lined with a plastic barrier, is on the southwestern edge and is approximately 250 feet from the Crane property at the closest point. To the north of those phases is a mitigation area currently used for cattle grazing; above the mitigation area is Phase 6, which is not yet operational.

The County also operates two creeks that run through the Cranes' property and then into Castle Dam: Canal Creek and Edendale Creek ("the creeks").*fn5 In 1993, the United States took certain land in easements by fee in order to build Castle Dam and Lot 44, APN 052-040-079; Lot 48, APN 052-050-026; Lot 47, APN 052-050-027; Lot 47, APN 052-080-016; Lot 48, APN 052-050-026; Lot 49, APN 052-050-025; Lot 50, APN 052-050-032; Lot 51, APN 052-050-024; Lot 52, APN 052-050-023; Lot 53, APN 052-050-022; Lot 55, APN 052-050-021; Lot 56, APN 052-050-033; Lot 56, APN 052-080-019; Lot 57, APN 052-080-020; Lot 57, APN 052-050-034; Lot 58, APN 052-060-015; Lot 58, APN 052-080-021; Lot 58, APN 052-070-012; and Lot 58, APN 052-050-035. The individual lots at issue are each owned by one of the plaintiffs, rather than collectively or jointly.

Reservoir Unit. This included a flood easement on the Crane property to account for any future flooding caused by the Dam, for which they were compensated. Plaintiffs are required to apply for a permit before planting any crops on the creek-related lots.

Plaintiffs' complaint can be separated into four distinct allegations: (1) volatile organic compounds ("VOCs") have migrated through the soil from the landfill onto Lot 1; (2) trash and odors are blown onto the Crane property from the landfill by the wind; (3) runoff water from the landfill floods Lot 1; and (4) debris from the creeks accumulates on the Crane property.

After a partial grant of summary judgment in this case on several issues of fact and law (Docket No. 153), seven claims remain: (1) inverse condemnation under federal and state law regarding VOC migration, trash, and creek debris; (2) trespass regarding VOC migration; (3) nuisance regarding VOC migration, trash, and odors; (4) negligence regarding VOC migration; (5) negligent failure to warn regarding VOC migration; (6) violation of the Due Process Clause of the Fourteenth Amendment; and (7) declaratory relief.

II. Discussion

Under the California Constitution article I, section 19, property may not be taken or damaged for public use without just compensation to the owner. Inverse condemnation is a constitutional remedy permitting recovery of consequential damages arising from public projects. Foreseeability is not required, Albers v. Cnty. of L.A., 62 Cal. 2d 250, 263-264 (1965), and tort concepts like fault or negligence are not applicable. Bunch v. Coachella Valley Water Dist., 15 Cal. 4th 432, 436 (1997). Instead, the government is strictly liable for any physical injury to property substantially caused by a public improvement as it was deliberately designed and constructed. Bunch, 15 Cal. 4th at 440; Pac. Bell v. City of San Diego, 81 Cal. App. 4th 596, 602 (4th Dist. 2000); Marshall v. Dep't of Water & Power, 219 Cal. App. 3d 1124, 1139 (2d Dist. 1990) ("[A] governmental entity may be held strictly liable, irrespective of fault, where a public improvement constitutes a substantial cause of the plaintiff's damages even if only one of several concurrent causes.").

To establish liability for inverse condemnation under the Albers standard, plaintiffs must establish, by a preponderance of the evidence, four elements: "First, that [they] ha[ve] an interest in real or personal property; Second, the [County] substantially participated in the planning, approval, construction or operation of a public project or public improvement; Third, [plaintiffs'] property suffered damage; and Fourth, the [County's] project, act or omission was a substantial cause of the damage." Yamagiwa v. City of Half Moon Bay, 523 F. Supp. 2d 1036, 1088 (N.D. Cal. 2007) (emphasis omitted).

Similarly, the Fifth Amendment of the United States Constitution provides in relevant part that "private property [shall not] be taken for public use, without just compensation." The Takings Clause is applicable to the states through the Fourteenth Amendment.*fn6 Dolan v. City of Tigard, 512 U.S. 374, 383 (1994). Physical possession of the property is not a necessary element of a takings claim. "A taking can occur simply when the Government by its action deprives the owner of all or most of his interest in his property . . . it is the loss to the owner of the property and not the accretion to the Government which is controlling in fifth amendment cases." Aris Gloves, Inc. v. United States, 420 F.2d 1386, 1391 (Ct. Cl. 1970).

To establish a claim for trespass, plaintiffs must plead and prove, by a preponderance of the evidence, the following: (1) plaintiffs owned the property; (2) the County intentionally, recklessly, or negligently entered plaintiffs' property or caused the contaminants or debris to enter plaintiffs' property; (3) plaintiffs did not give the County permission for the entry; (4) plaintiffs were harmed; and (5) the County's conduct was a substantial factor in causing that harm. See Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1119 (E.D. Cal. 2009). "A trespass may be on the surface of the land, above it, or below it. The migration of pollutants from one property to another may constitute a trespass . . . ." Martin Marietta Corp. v. Ins. Co. of N. Am., 40 Cal. App. 4th 1113, 1132 (2d Dist. 1995) (internal citation omitted).

California Civil Code section 3479 defines a nuisance as "[a]nything which is injurious to health . . . or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . ." Cal. Civ. Code § 3479. "The statutory definition of nuisance appears to be broad enough to encompass almost any conceivable type of interference with the enjoyment or use of land or property." Stoiber v. Honeychuck, 101 Cal. App. 3d 903, 919 (5th Dist. 1980). "The migration of pollutants from one property to another may constitute . . . a nuisance . . . ." Marietta, 40 Cal. App. 4th at 1132.

In their negligence claim, plaintiffs allege negligence per se for various violations of California law, and also argue that res ipsa loquitur applies. A presumption of negligence arises if: (1) the defendant violated a statute; (2) the violation proximately caused the plaintiff's injury; (3) the injury resulted from the kind of occurrence the statute was designed to prevent; and (4) the plaintiff was one of the class of persons the statute was intended to protect. Quiroz v. Seventh Ave. Ctr., 140 Cal. App. 4th 1256, 1285 (6th Dist. ...

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