36 P. 859 | Cal. | 1894
Action to recover damages for diverting water from defendant’s land, and causing it to overflow
It is admitted that since 1880 the plaintiff has owned the south half of section 18, and southwest quarter of section 17, township 2 north, range 6 east, and that from 1880 until August 3, 1889, George F. Smith (defendant’s husband and grantor) owned the north half of section 19, and northwest quarter of. section 20, of the same township, and adjoining plaintiff’s land on the south side thereto, all situate in the county of San Joaquin. It appears that all the lands above described are swamp and overflowed lands, not generally susceptible of cultivation without reclamation; that they are. to some extent, overflowed by the tides, and are also subject to periodical overflows, to the depth of three to five feet, from the San Joaquin river and other sources, by extraordinary floods. It does not appear, however, that any part of these lands have been purchased from this state. A slough called “Twelve-mile slough” crosses the lands of plaintiff and de
Twelve-mile slough has no natural source of water supply, except surface drainage, during the rainy season, and has in it no water, except standing pools, during the dry season. That part of it which crosses the comer of plaintiff’s land and the • northwest quarter of section 20 has well-defined banks, which, at the dam, are ten to eleven feet high; but below the middle of the northeast quarter of section 19 the slough is a mere swale, having no well-defined banks, and being only about a foot to a foot and a half lower than the general level of the land bordering upon it. The east line of plaintiff’s and defendant’s lands is marked “Line of Segregation” upon an unofficial map used on the trial, and is understood to be the line of segregation 'between the swamp lands and high lands. In 1882 the plaintiff and the defendant’s grantor, George F. Smith, verbally agreed to reclaim their lands in the manner following: Each, at his own expense, was to build a levee from a point at the extreme junction of their lands around his land to the segregation line; that is, the plaintiff was to build on the north and west of his land, and Smith on the south and west of his, and join their levees at said point on the west, where they were, jointly, to build a floodgate. This agreement was executed by the completion and junction of their levees in the fall of 1883. During 1884 they discovered that their levees, alone, were insufficient to protect their lands. Having been constructed mostly of peat turf, they were porous, so that large quantities of water seeped through and under them,
1. The appellant contends that the judgment on the first count of the complaint is erroneous, for the reason that there was neither averment nor evidence that the defendant had any notice before the commencement of the action that the dam across the slough was a nuisance, nor that it ever had any
2. The second count charges that in February, 1891, the defendant cut a wide and deep aperture through the western outside levee on her own land, at the west end of the canal by. reason whereof, in the following month, the back waters from the San Joaquin river and tributaries flowed through the lands of plaintiff, and destroyed his crops thereon, etc. The evidence is sufficient to justify the verdict of the jury on this count, unless, as contended by the appellant, the defendant had a right to open the levee as she did. The arguments of counsel for appellant in support of this alleged right of the defendant to open the levee are- principally, if not entirely, founded upon the assumption that the lands of the parties are legally “swamp and overflowed lands,” authoritatively segregated, and certified to the state, and that the parties have acquired title from the state by purchase, and thereby have incurred such obligations to reclaim the land as are imposed by law on purchasers of swamp and overflowed land from the state. But there is nothing in the pleadings or in the evidence tending to show that these lands were ever lawfully segregated as swamp and overflowed lands, or that either party claims title or possession under the state. Therefore, neither the obligations assumed by purchasers of swamp and overflowed lands nor any deductions therefrom are relevant to this case.
3. The court did not err in refusing to find the facts after the plaintiff had waived all equitable relief. Section 731 of the Code of Civil Procedure provides that a nuisance is the subject of an action, in which “the nuisance may be enjoined or abated, as well as damages recovered.” Under a similar provision of the practice act (section 249), it was said by Mr. Justice Sanderson, for the court: “The nuisance is the cause of action. The abatement and damages therefor are merely the different kinds of relief to which the plaintiff may be entitled”: Yolo Co. v. Sacramento City, 36 Cal. 196. We perceive no reason why the plaintiff was not at liberty to withdraw his prayer for abatement of the nuisance, and thereby
4. Appellant contends that the court erred, in numerous instances, in its instructions to the jury, and in rejecting evidence offered 'by defendant. But, so far as relates to the second count, we find no error prejudicial to the defendant. As the first count states no cause of action, and the error of rendering a judgment thereon may be corrected by a modification of the judgment, a new trial should not be ordered. The judgment is therefore modified by reducing it to the sum of $3,982.80, which includes the costs of trial, and as so modified the judgment is affirmed; costs of appeal to be taxed to the respondent. The order denying defendant’s motion for a new trial is affirmed.