73 Cal. 125 | Cal. | 1887
Lead Opinion
This is an action to abate and remove as a public nuisance a levee erected by defendant along the west bank of the Sacramento River, and across
The Sacramento River is a large navigable stream, having its sources near the boundary line between the states of Oregon and California, and running for several hundred miles through the northern and central parts of the latter state to the bay of San Francisco. In times of high water it frequently overflows its banks. A great deal of the adjoining land is lower than the banks of the stream; and at times of overflow the surplus water runs down to and over such land, where it remains until it evaporates, or, later in the season when the river is at a lower stage, runs back into the stream. The water at some places pours over the entire bank in continuous sheets for considerable distances, but more commonly finds its way out through the lower parts, or depressions, of the banks, which of course have gradually been worn down deeper and wider by the action of the water. These short depressions by which the water gets through the banks into the lower lands beyond are called sloughs; and Wilkins Slough, mentioned in the complaint, is quite a large depression of that character, and affords means of escape during overflows for a considerable quantity of water. The lands thus overflowed, and for the protection of which respondent claims the right to maintain said levee, are a part of that large body of swamp and overflowed land acquired by California from the United States by virtue of the act of Congress of September 28, 1850, generally known as the Arkansas act.
The respondent, Reclamation District No. 108, is a public corporation, organized and existing under the
The complaint—taken as true—avers in substance that on December 22, 1879, plaintiff was the owner and in possession of a tract of land fronting on the opposite or east side of said Sacramento River; that on the 23d of said month he resided on said land with his family;
It does not appear when or from what source plaintiff got title to or possession of his land. It only appears that he was there in December, 1879, and that the alleged damage occurred in April, 1880, which was between seven and eight years after the erection of the levee.
The questions to be determined in the case are, Did respondent have the right .to construct the levee which it completed in 1872, notwithstanding the damage which was caused thereby, several years ■ afterward, to appellant’s land? and has it the right to maintain said levee, notwithstanding any damage which it may possibly or
It may be remarked that the conclusion that respondent had or has no such right does not follow from the mere fact of damage to appellant’s land. The phrase damnum absque injuria is just as well recognized, as a statement of a legal condition, as the maxim, Sic utere, etc., is, as the statement of a limitation of rights to property. And the words damnum absque injuria include a direct declaration in terms of the proposition that there may be damage without legal injury. Therefore the reiteration of one or the other of these Latin phrases affords but little aid in the solution of any question. This is well expressed in the text of Wood’s Law of Nuisances, p. 21, as follows:—
“ But when no right has been violated, it cannot, by c.ay process of reasoning, be established that there is a legal injury or damage. The instances of damnum absque injuria are very numerous, and are always injuries that result from a lawful act, for the law never recognizes an injury arising from a lawful act as imputing damages. .... In giving force to the maxim, Sic utere, etc., the courts are always met by the right of parties to use their own property in every reasonable way, and neither justice nor public policy would tolerate the idea that a person should be made liable for damages resulting from a reasonable use of his property. Therefore, in determining whether or not an injury has been done amounting to a nuisance, it is necessary to balance the rights of the parties, in view of all the circumstances, and say whether or not the use of the property in the manner complained of is reasonable and in accordance with the relative rights of the parties.”
The real question in such cases is, Had the party sued the right to do the thing complained of?
Respondent has at least as much right to maintain the levee as a natural person owning lands of a charac
' In Rex v. Commissioners, supra, the facts were these: The commissioners of the levels, for the purpose of protecting the property intrusted to their care against the inroads of the sea, erected certain groynes and other works, which caused the water to flow with greater force against the lands of one Cosens, and to injure them and to gradually wash a portion of them away. The lands of Cosens fronted on the seashore, and were adjoining and to the eastward of the levels on which the works of the commissioners were erected. The question was, whether or not the commissioners could be compelled to pay for the damages done to the lands of Cosens, or to -.erect. other works to prevent further injury to said lands. 'The .court decided that the commissioners were not liable,, .and that Cosens would have to protect his own "lands by works similar to those of the commissioners. Lord Tenter den, C. J., in delivering the opinion of the -court, :said, among other things, as follows: “But the sea .is. a .common enemy to all proprietors on that part oif .the coast, and I cannot see that the commissioners, acting for the common interest of several land-owners, are, as to this question, in a different situation from any individual proprietor. Now, is there any authority for saying that any proprietor of land exposed to the inroads of the sea may not endeavor to protect himself by
Logically, this principle would seem to be applicable to the waters of large navigable American rivers subject to extensive overflows. And it has been thus made applicable in a number of adjudicated cases. (Hoard v. City of Des Moines, 62 Iowa, 326; S. & B. Turnpike Co. v. Green, 99 Ind. 205; C. & V. R. R. Co. v. Stevens, 73 Ind. 283; Dubose v. Levee Commissioners, 11 La. Ann. 165; Bass v. State, 34 La. Ann. 494.) But inquiry on this branch of the subject need not here be further prosecuted, be
Under these views, it is unnecessary to discuss the distinction made by counsel for respondent between “ eminent domain ” and the “ police powers ” of a state. The right and duty of the state — acting for the public benefit and the general welfare, and by means of municipal corporations like respondent — to reclaim the swamps and overflowed land granted to it by the Arkansas act, we do not understand to be disputed. (Kimball v. Reclamation Fund Com’rs, 45 Cal. 344; Hagar v. Yolo County, 47 Cal. 222; People v. Reclamation Dist. 108, 53 Cal. 346; Dean v. Davis, 51 Cal. 406.) And counsel for respondent argues that this right is exercised under the police powers of the state, and that therefore appellant would not have been entitled to compensation even if his property had been “ taken.” But as the land of appellant was not taken, we need not follow the point here made by respondent. Under either view, respondent is not liable for the remote and indirect damage.
With respect to the matters involved in this case, it may be remarked that the Sacramento very closely resembles the Mississippi River, the difference being in magnitude, not in character. And it has been held in states bordering on that river that the state may not only control and levee its banks for the purpose of preventing the adjoining country from overflow, but may compel riparian owners to maintain such levees at their own expense. (New Orleans Drainage Co.’s Case, 11 La. Ann. 370; Bass v. State, 34 La. Ann. 494; Dubose v. Levee Com’rs, 11 La. Ann. 165.) And it is a matter of com
Counsel for appellant contends that Wilkins Slough is within the legal definition of a “ watercourse,” and argues for the application here of the doctrine that one landowner on a watercourse cannot dam it so as to flood the land of his neighbor above. But in the first place, appellant is not a riparian owner upon Wilkins Slough. His land is two miles away, and divided from it by a large navigable river. He has no interest in whatever rights land-owners on Wilkins Slough, if there were any, might have as between themselves. In the second place, we do not think that Wilkins Slough, as between appellant and respondent at least, is to be treated as a watercourse within the legal meaning of that word. It occasionally happens that a river, in its course from its source to its mouth, divides into two main, permanent channels, each carrying continuously a large part, if not a moiety, of its waters at all stages, and either uniting with the other at a lower point, or continuing to the sea* leaving a delta between the two. But there is nothing here resembling that condition. Wilkins Slough is not a channel or fork, continuously carrying a large part, or any part, of the waters of the Sacramento River. It carries no water at all except “ in times of flood,” and then the amount which it carries, when compared with
Considering, therefore, all the facts and circumstances of this case, and confining our opinion to the case here made, we think that the works of respondent complained of by appellant do not constitute a nuisance, and that respondent is not legally liable for the incidental damage caused thereby, as above described.
Judgment affirmed.
Concurrence Opinion
concurring.—I concur in the judgment on the ground that the character, size, and operation of the slough which was obstructed cannot be satisfactorily determined from the pleadings upon which the cause was submitted and decided. Before a court of equity would be authorized in declaring the levees and dams
It is true, the complaint alleges that said slough was a natural watercourse, but other allegations of the complaint and answer (which must be taken as true) leave that matter very doubtful and unsatisfactory.
The state and its grantees are charged with a great trust with respect to swamp and overflowed lands- under the laws by which they are granted, and it is by no means clear that that trust can be executed if we apply strictly the common-law. rules applicable to nuisances caused by the obstruction of natural watercourses. It may be necessary, under our peculiar conditions as to seasons, watersheds, river systems, and swamp-lands, to find a new definition for the term “natural watercourse,” if we are to apply old principles to the innumerable sloughs which are found in our overflowed districts, and which have well-defined banks and beds. There are channels in this state not well defined in bank and bed, without water in them during certain months of the year, yet so important in operation during high water that to dam them would be disastrous to life and property; and there are sloughs running out from the rivers in the low-lands with well-defined banks and beds, and with water running bank-full every month in the year, yet so unimportant in their operation that to close them would have no appreciable effect upon the river or its tributaries, except to improve the same for navigation, but so numerous in the overflowed districts that to restrain the obstruction of them simply because they are within the accepted definition of a natural watercourse would in many instances prevent the reclamation of
If the slough is one which, considering the end to be accomplished by defendant, and with due regard to the property rights of others, could not lawfully be obstructed, it may be fairly inferred that plaintiff would have discovered the fact, and proceeded to have the obstruction abated long before the commencement of this action. The delay in bringing the suit adds to the uncertainty arising from the complaint and answer concerning the equity of plaintiff’s prayer for the abatement of the levee and dam as a nuisance.
Concurrence Opinion
concurring.—I concur in the judgment and in the opinion, but I do not agree to the construction apparently placed upon the case of Green v. Swift, 47 Cal. 536, and upon the case of Green v. State, ante, p. 29.