299 P. 819 | Cal. Ct. App. | 1931
The City of Santa Monica, a municipal corporation, appealed from a judgment in favor of the plaintiffs in an action for damages alleged to have been sustained by the diversion of water on to the lands of the latter.
The facts material to the controversy are undisputed, it being solely a question of law as to whether or not a municipality is liable in damages upon facts such as found by the trial court. Appellant raised the grade and paving of a street upon which property of respondents abutted, and which was approximately of the same elevation or grade level as the street prior to such improvement. All work was executed in accordance with plans and specifications, and was legal and regular. In doing the work appellant caused a depression or natural watercourse to be filled in to such an extent as to prevent flood waters from draining off, without constructing a culvert or drain, and the waters were "caught, retained, held and impounded in such a way that said flood waters were forced over and across plaintiffs' property".
[1] It is contended that a municipal corporation is not liable in damages for the negligent performance of a governmental function, and that respondents are estopped to complain because of their failure to object to the proposed grade or modification of grade as required by section 3 of the Street Improvement Act of 1911. *332
The obvious answer to this latter contention is that the respondents could not be said to have contemplated a nuisance, and that they had no objection to legal and proper improvements which might be installed in accordance with established principles of law.
[2] We think the present controversy arises more through confusion of these principles by the parties than from real conflict of authorities. Surface waters are largely regarded by the law as a common enemy, and where damage results solely as a consequence of the proper execution of a legal power of the municipality, there is no implied liability therefor. The city is not bound to protect from such waters those who may be so unfortunate as to own property below the level of the street. But where surface water has found for itself a definite channel in which it is accustomed to flow, the municipal corporation in grading streets should erect a culvert or waterway, so as to maintain such channel in its well-defined course. (Lampe v.San Francisco,
The judgment is affirmed.
Works, P.J., and Archbald, J., pro tem., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on June 23, 1931, and 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 July 23, 1931.