32 P. 229 | Cal. | 1893
Plaintiff appeals from the judgment and an order denying his motion for a new trial. The action was brought to enjoin defendants from constructing a bulkhead or embankment by which, it is alleged, certain waters would be turned upon plaintiff’s premises, to his injury. Defendants answered, and also filed a cross-complaint, seeking affirmative relief against the plaintiff. The findings of the court, upon all the issues, were in favor of defendants. The locus of the controversy is upon a subdivided portion of the San Bernardino ranch, northwesterly from the city of Redlands. Colton avenue runs east and west .and California street crosses the avenue at right angles. The plaintiff’s land lies on the north side of Colton avenue, and .the land of defendants, Cole and Hicks, on the south side. California street is the east boundary of the land .of the plaintiff and of defendant Hicks, and defendant Cole’s land adjoins Mrs. Hicks’ land on the west. The Adams or La Pierce land, mentioned in the testimony, lies on the south side of Colton avenue, and is separated from Mrs. Hicks’ land by California street, and the land of William Curtis, mentioned in the testimony, lies on the west side of California street, and adjoins the land of defendant Hicks on the south. The lands of plaintiff and defendants, Cole and Hicks, are highly cultivated, and planted in orange, lemon, and other fruit trees and vines. The complaint alleges “That to the southeast of plaintiff’s premises is a large section of country comprising what is known as the ‘Old Barton Ranch’ and ‘Redlands,’ all of which is cultivated and irrigated; and since the cultivation and irrigation of the same, and during heavy storms of rain, the water flows down from the same to the southeast corner of plaintiff’s land, and has cut itself a channel down through said Colton avenue, running westward along plaintiff’s south line, but outside and south of plaintiff’s improvements, and is flowing thereon in greater or less quantities at different times.” The complaint then charges that defendants are proceeding to build a bulkhead across Colton avenue, on the line of California street, for the purpose of preventing the water from passing down Colton avenue, and compelling it to pass over plaintiff’s premises, to the great injury of Ms orchards and improvements, by cutting chan
After a careful examination of the maps and the testimony of the witnesses, the principal issue of fact is not difficult of determination. It is somewhat obscured by the large mass of testimony, much of which is immaterial and sharply conflicting. Counsel for appellant concedes that “it is in evidence, and not contradicted, that at some time in the past a dry gulch ran down through these places to the southeast corner of plaintiff’s place.” Plaintiff’s answer to the cross-complaint would seem to show quite conclusively that such dry gulch existed until about 1887, when, by the improvement and cultivation of the land, “the conformation of the
Appellant complains that there was no finding upon the allegation that not more than 2,500 inches of water naturally flowed at the point where the channel entered his land. But it is immaterial whether the quantity naturally flowing there was 500 or 2,500 inches. If any material quantity— that is, any quantity capable of doing damage to others if diverted—naturally flowed there, he had no right to obstruct it, and divert it to other and new channels, to the injury of others; and hence the quantity diverted, within the limits above stated, could not affect the character of his dam as a nuisance. I think the findings cover all the material issues, and are fully justified by the evidence, and that the findings support the judgment.
Some exceptions to evidence are found in the body of the transcript, but which are not referred to in the specifications of error, nor in appellant’s brief, and we therefore assume that they are not relied upon. The judgment and order appealed from should be affirmed.
We concur: Vanclief, C.; Belcher, C.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.