| Cal. | Jul 1, 1869
Lead Opinion
We discover no error in the instructions of the Court below, as given to the jury, at the request of plaintiff. Those to which exceptions were taken by appellant, and the giving of which are specified as errors on his motion for new trial, very fairly present the law applicable to the facts of the case, as announced by this Court on the former appeal. (34 Cal. 74.)
The refusal of the Court to give the eleventh instruction asked by appellant, which was at the time excepted to by
The ditch from Whisky Diggings Ravine through plaintiff’s lands to Coon Creek, seems, by the evidence, to have been claimed, adopted, and controlled by defendant, as a shorter or more direct passage for the natural waters of such ravine, as also for the water discharged into the ravine from- his ditch to Coon Creek, and having so adopted this artificial channel or outlet, he is responsible for any. damage occasioned to plaintiff’s lands by reason of his failure or neglect to keep such artificial channel in such state of preservation and repair as to prevent injury to plaintiff’s property while he so used and controlled the same. And if, during heavy rains or freshets, this artificial channel was not of sufficient capacity to contain all the natural water of said ravine, together with such additions thereto as were emptied into the same from defendant’s ditch, it was his duty to see that no more water entered the artificial channel than it could safely carry through to Coon Creek, without detriment or injury to plaintiff’s adjacent lands; and for any injury to the lands of plaintiff, caused by overflow of the waters entering this ditch, resulting either directly or remotely from the negligence of defendant in keeping the same in good repair, or in the manner of its use, while under his exclusive control, he is responsible in damages.
We are entirely satisfied that the rights of appellant in this case were not prejudiced by the instructions of the Court below, which, taken together, presented the law of the case upon the evidence clearly and quite ^s favorably as he can justly claim.
Judgment and order affirmed.
Dissenting Opinion
I am of opinion that the judgment should be modified by omitting the injunction. I think it would be difficult to find a precedent for an injunction like the one awarded in this case. It is altogether too loose and indefinite. The defendant is entitled to use his ditch, provided he can do so without injuring the plaintiff. There may be a great difference of opinion as to when ditches “are not properly cleaned out or in good repair, and when their banks and levees are not properly kept up so as to prevent the injury complained of.” This should not be left open for the defendant to determine from time to time, at his peril, as occasion requires. The defendant is, also, generally enjoined “from further damaging said premises by means of the diversion of said waters.” Injunctions so loosely framed would be impracticable and intolerable. If an injunction is to be granted, the very thing to be done, or not to be done, should be ascertained by the Court and specified in the injunction, and not be left for the party enjoined to ascertain for himself at his peril. For instance, if a dam is to be cut down so as not to flow water upon premises above, the Court should ascertain the exact portion of the dam necessary to be abated in order to effect the desired object, and specify the height to which it should be reduced. I think an injunction against a party who is entitled to maintain and use a dam, requiring him in general terms not to keep his dam so high in times of freshets as to flow water upon premises above, and from damaging said premises by means of said dam, leaving the defendant to adapt his dam to the condition of the water, according to his own judgment, and to determine what does and what does not constitute damage under peril of punishment for contempt in case he misjudged, would be a novelty in equity jurisprudence. Yet such is the character of the injunction in this case. The defendant is enjoined from running water through his ditches “ when said ditches are not properly cleaned out or in good repair, and when their