Tumbling-T Ranches v. Paloma Investment Ltd. Partnership

5 P.2d 259, 5 P.3d 259, 197 Ariz. 545, 320 Ariz. Adv. Rep. 47, 2000 Ariz. App. LEXIS 65
CourtCourt of Appeals of Arizona
DecidedMay 2, 2000
DocketNo. 1 CA-CV 98-0605
StatusPublished
Cited by14 cases

This text of 5 P.2d 259 (Tumbling-T Ranches v. Paloma Investment Ltd. Partnership) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tumbling-T Ranches v. Paloma Investment Ltd. Partnership, 5 P.2d 259, 5 P.3d 259, 197 Ariz. 545, 320 Ariz. Adv. Rep. 47, 2000 Ariz. App. LEXIS 65 (Ark. Ct. App. 2000).

Opinion

OPINION

NOYES, Judge.

¶ 1 Appellants, owners of farms located along the Gila River, brought this action to recover for damages they suffered during the 1993 flooding of the river. Appellants alleged that Paloma Investment Limited Partnership, Prudential Insurance Company of America, Maricopa Land, Inc., Paloma Ranch Joint Venture, Bookman-Edmonston Engineering, Inc., and Maricopa County,1 by virtue of their maintenance, ownership, and control of Gillespie Dam and adjacent land and stream beds, and the Maricopa County Flood Control District (“FCD”),2 by virtue of its construction of an upstream clearing and pilot channel project, caused water and sediment to be diverted, obstructed, or rerouted through Appellants’ properties, resulting in significant damage to real and personal property. Appellants appeal from the trial court’s grant of summary judgment in favor of Appellees. We have appellate jurisdiction pursuant to Arizona Revised Statutes Annotated section 12-2101(B) (1994).

I.

¶ 2 We view the facts and all reasonable inferences therefrom in the light most favorable to the parties opposing summary judgment. See Orme Sch. v. Reeves, 166 Ariz. 301, 309-10, 802 P.2d 1000, 1008-09 (1990). Gillespie Dam is a concrete and steel structure approximately 1700 feet long and 20 feet high. It was constructed on the Gila River in 1921 as an irrigation diversion dam. Appellants’ properties lie along a thirty-seven mile stretch of the river, extending from a point approximately one and one-half miles below the dam on the north to the Painted Rock Reservoir on the south.

¶ 3 Gillespie Dam’s reservoir filled with silt and sediment up to its crest shortly after it was completed. The sediment formed a triangular wedge approximately 1700 feet wide and 20 feet deep at the face of the dam that tapered off five or six miles upstream. The dam and sediment wedge remained intact until the 1993 flood. Several Appellants attested that prior floods in 1978 and 1980, one of which set a record for peak water flow, caused little or no damage to their farms.

¶4 Property owners upstream, however, had experienced flooding problems. In response, FCD embarked on two flood control projects. In 1979, FCD cleared vegetation from a 1000-foot-wide corridor running from 91st Avenue to the dam in order to improve channel flow and thus prevent high flows of water from being forced onto adjacent farmland. In 1986, FCD began constructing a “pilot channel” upstream from the dam. The channel, which was intended to straighten and direct water flow in that portion of the river, averaged three feet deep, fifty to one hundred feet wide, and extended over twenty-two miles. FCD completed both projects in 1992.

[548]*548¶ 5 In early 1993, the Gila watershed experienced record rainfall. Flooding occurred from January 1 through April 28, 1993, setting records for runoff volume and duration of flooding. On January 9, 1993, the river reached a high peak flow between 7:00 a.m. and 11:00 a.m., which was the longest duration peak flow in the river’s recorded history. Several hours later, the dam incurred an initial break approximately twenty to twenty-five feet wide, which ultimately widened to 206 feet. The water rushed through the breach, creating a headcut, or trench, in the sediment wedge. This headeutting process continued for several months thereafter and extended for several miles upstream. Appellants’ experts estimated that thirty-six million cubic yards of additional sediment were introduced into the river by the dam’s breach and the ensuing erosion of the sediment wedge.

¶ 6 Appellants brought suit against Appel-lees, alleging that Appellees’ conduct relating to the breach of the dam and the clearing and pilot projects caused the release of this additional sediment, which clogged the channel, caused more water to overflow the banks, and thus caused increased damage to Appellants’ properties. Appellants also alleged that the sediment deposits increased the risk of damage to their properties from future flooding. Appellants based their claims on theories of negligence, strict liability, trespass, nuisance, and in the ease of Maricopa County and FCD, inverse eminent domain.

¶ 7 At an October 24, 1996 scheduling conference, the trial court ordered Appellees to file their motions for summary judgment on the limited issue of damages. The court defined the issue to be addressed as “any increase in damage to the Plaintiffs caused by the failure of Gillespie Dam, as opposed to the damage caused by the flood.”

¶ 8 In these motions, Appellees contended that Appellants suffered no damage due to the breach and that the alleged damage was due to Appellants’ encroachment on the river’s floodplain and the “extensive and sustained natural flooding.” Appellees relied upon the opinions of at least ten experts in preparing their motions and supporting statements of facts.

¶ 9 In their opposition to Appellees’ summary judgment motions, Appellants presented the affidavits of two experts. The experts stated that the pilot and clearing projects and the breach of the dam caused millions of additional cubic yards of sediment to be washed downstream and deposited in the channel and on the riverbanks and that these deposits increased the damage to Appellants’ properties and increased the risk of damage from future flooding. Following Appellees’ reply, the trial court issued the following ruling:

There is controversy between the experts on certain points, which if the matter is tried, must be resolved by the jury. However, taking the Plaintiffs[’] evidence, the facts which a jury could find are:
1. After the breach of the dam 36,000,-000 more cubic [yards]3 of silt and sediment flowed down river.
2. Some undetermined amount of that silt and sediment was deposited in the river bed and on the Plaintiffs’ properties. The remainder was deposited in the Painted Rock Reservoir.
3. As a result of that increased deposit, the Plaintiffs’ properties are at some greater risk for flooding in the future. A jury could not find from the evidence
that the breach of the dam increased the erosion to the Plaintiffs’ properties during the floods; nor that the breach increased the loss of various fixtures, fencing, wells or berms.
To prevail at trial there must be evidence, not only of an increased risk of flooding, but there must be something upon which the jury could determine which portion of the increased risk of flooding is as a result of the flooding alone and which portion is as a result of the increased deposits of silt and sediment. Further, as [549]*549to each Plaintiff, the jury would have to be able to determine how each was damaged by the increased risk of flooding caused by the Defendants. Schlec[h]t v. Schiel, 76 Ariz. 214[,] 262 P.2d 252 (1953)[.]
The evidence, as presented by the Plaintiffs, upon which the jury could consider how much the possibility of flooding has increased as a result of the silt and sediment deposits as to all of the Plaintiffs; and how any individual Plaintiff has been damaged, is insuffleient to meet the standards of Orme School____

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Bluebook (online)
5 P.2d 259, 5 P.3d 259, 197 Ariz. 545, 320 Ariz. Adv. Rep. 47, 2000 Ariz. App. LEXIS 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tumbling-t-ranches-v-paloma-investment-ltd-partnership-arizctapp-2000.