237 P. 554 | Cal. Ct. App. | 1925
The plaintiff owns the southwest quarter of section 29, township 16 north, range 4 east, in Yuba County, the land being outside the boundary lines of the defendant district. The defendant is an irrigation district organized under the California Irrigation District Act. (Stats. 1897, p. 254, and amendments thereto.) Within the district, in section 19 and the sections northerly thereof, rice is raised on seven hundred acres of land for the irrigation of which water is furnished by defendant. The Southern Pacific Railroad runs in a northeasterly direction and touches the southeast corner of section 19. The natural drainage of the seven hundred acres of rice land and certain other lands in the district is in a southwesterly direction through a slough which is west of the railroad. Nigger Jack slough runs in a southwesterly direction in a course nearly parallel with and approximately a quarter of a mile *333 east of the railroad. It enters plaintiff's land near the middle of the north boundary thereof and a short distance southwesterly from the point of entrance it divides into two branches, the east branch crossing plaintiff's south boundary and the west branch running westerly to a point near the west boundary and thence southerly to about the middle of the west boundary, where it turns again and crosses the west boundary in a southwesterly direction. The two branches unite again below plaintiff's land. His land was leased to tenants and he resided in the city of Oakland, California.
The defendant endeavored to obtain a right of way for a drainage ditch through lands lying south of section 19, but failing to reach an agreement with the owners of such lands it was determined to construct a drainage ditch along the south boundary line of section 19 to the southeast corner of that section and thence south to Nigger Jack slough. It caused a letter to be mailed to the plaintiff, addressed to Oakland, requesting a right of way through his land, but for some reason it was not delivered to him and was later returned to defendant. In the month of May, 1920, the defendant constructed the proposed drainage ditch, referred to in the judgment as a "drag-line" ditch along the south boundary line of section 19 and through the embankment of the railroad, thence south to the northwest corner of the plaintiff's land, and thence, without plaintiff's knowledge or consent, in a southeasterly direction through his land for a distance of about five hundred feet to the west branch of Nigger Jack slough. The ditch through plaintiff's land was excavated to a depth of several feet and to a width of about eight feet on the bottom. It followed the course of a smaller ditch which theretofore had drained a county road. During the irrigating seasons of 1920 and 1921 such quantities of water were turned into the ditch as to cause the slough to overflow and damage the crops growing on plaintiff's land. It does not appear when the plaintiff first learned that the ditch had been constructed through his land. It appears, however, that in December, 1921, the plaintiff and the officers of the defendant discussed the question of damages to the land from the overflow and the matter of securing a right of way through it for drainage purposes. The record does not show when this action was commenced, but the amended complaint was filed July 10, 1922. *334
The judgment awards plaintiff damages for the flooding of his land and enjoins defendant from discharging "any foreign waters" into Nigger Jack slough "so as to cause said Nigger Jack slough or any of its branches, at or on plaintiff's land to overflow any of the natural and unleveed banks thereof." The defendant has not appealed from the foregoing parts of the judgment, but has appealed from the following provisions thereof:
"It is further ordered, adjudged and decreed that the defendant do within thirty days after date of service of a certified copy hereof upon said defendant, effectually and permanently close up that certain opening or siphon constructed by defendant in 1920 through the embankment of the Southern Pacific Railroad, which said opening is a part of the drag-line ditch excavated by defendant along the south line of section 19 . . . to and under said railroad and thence easterly and southerly to the lands of plaintiff hereinafter described, so that no drainage, seepage or overflow waters shall thereafter be permitted or allowed to flow from the lands west of said railroad through said opening and drag-line ditch to the lands east of said railroad, and so that no drainage, seepage or overflow waters shall thereafter be permitted or allowed to flow from the lands east of said railroad into and through said drag-line ditch to and upon the lands of plaintiff hereinafter described.
"It is further ordered, adjudged and decreed that said defendant, its agents, attorneys, servants and employees and any and all other persons acting in behalf or aid of said defendant be and they are and each of them is permanently and forever restrained and enjoined from bringing any drainage, seepage or overflow waters through or under the embankment of the Southern Pacific Railroad and down the drag-line ditch herein referred to and into Nigger Jack slough or on the lands of the plaintiff hereinafter described."
Appellant contends that respondent "did not prevent the work from being done," and that, therefore, after the completion of the drainage ditch and its use for the public benefit, "injunction will not be permitted, but respondent will be relegated to his action for damages," citing Crescent Canal Co.
v. Montgomery,
The only ground that can be urged in support of appellant's contention, there being no estoppel against or waiver by respondent, is that of public policy. [2] But the constitutional rights of a citizen ought not to be abridged on the ground of public policy unless the welfare of the public is really and substantially involved. The rule of law announced inBaltimore Ohio Southwestern Ry. Co. v. Voigt,
[3] The injunction, however, is too broad in its terms. It enjoins the defendant from taking water through the embankment of the railroad and thence down the drag-line ditch to Nigger Jack slough. This ditch, without going through the plaintiff's land, could be extended southerly to the west branch of the slough through the lands of other owners lying farther west. Also, the defendant may condemn a right of way through the plaintiff's land. In either event it would have the right, as against plaintiff, to discharge drainage water through the opening in the railroad embankment and down the drag-line ditch. The injunction should have gone no further than to restrain the defendant from using that part of the drainage ditch which is upon plaintiff's land. That part of the judgment from which no appeal has been taken restrains the defendant from causing water to overflow upon plaintiff's land. No damage, therefore, to crops growing upon the land will result from the use of the drainage ditch through the land for such length of time as may be reasonably necessary to enable the defendant to acquire a right of way by condemnation.
The judgment is modified by striking therefrom the parts from which the defendant has appealed except the description of plaintiff's land contained therein, and inserting in lieu thereof the following: "It is further ordered, adjudged and decreed that said defendant, its agents, attorneys, servants and employees and any and all other persons acting in behalf or aid of said defendant be and they are and each of them is permanently and forever restrained and enjoined from discharging, or causing to flow, any drainage, seepage or overflow waters into or through that part of defendant's drainage ditch which is upon plaintiff's land, at any time later than sixty days after this judgment shall become final; provided, that nothing herein contained shall preclude the defendant from at any time prosecuting an action to condemn *339 a right of way through plaintiff's land for a drainage ditch."
As so modified the judgment is affirmed, the respondent to recover his costs on appeal.
Plummer, J., and Hart, J., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 15, 1925.
All the Justices concurred.