Sanguinetti v. Pock

court also made findings of fact. The following diagram will illustrate the facts:—

Summarized from the findings, it appears that plaintiff and defendant own adjoining lands, as shown by the diagram;

a natural waterway passes through these lands; its course is from east to west, and it extends eastward some distance east of the Mariposa road and westward through defendant’s land, and “in its natural condition was sufficient to conduct and carry away the waters which naturally accumulated thereon,” and “the waters which accumulated in said waterway were, by means thereof, conducted and carried away from plaintiff’s lands, and such waters were thereby prevented from accumulating on or flooding the lands of plaintiff.” In December, 1896, defendant constructed a dam and levee across the bed of said waterway at the point where it enters defendant’s lands by means of which the water was obstructed in its flow, was diverted from its channel where it was accustomed to run, and was made to back upon and overflow plaintiff’s lands to the injury of his crops during the year 1897 in the sum of forty dollars. Defendant continues to maintain his said levee and threatens so to do, and will thus deprive plaintiff of the enjoyment of his said land. The land of plaintiff and defendant is not situate on a plain substantally level and unbroken by waterways, but the land of plaintiff is higher than the land of defendant, “and through said land passes said waterway, by which the waters naturally accumulating on plaintiff’s lands have been conducted and. carried away.” Mormon Slough is a river, and is a branch of the Calaveras River, and flows nearly parallel with said waterway from east to west and about one mile distant on the north. “In seasons- of high water the water flowing in Mormon Slough overflows the banks thereof and by means-of the said waterway reaches the lands of the plaintiff, from whence such waters pass by means of the said waterway-through defendant’s lands.” Plaintiff’s crop was injured, “in part by water coming from said Mormon Slough at a, time of freshet, ’ ’ but ‘1 said flow was not unusual or extraordinary for the season of the year when and where the same-occurred.” In the year 1896 defendant constructed along the-eastern boundary of his land a levee and canal, or ditch, ‘which at the south end connected with another ditch on the-lands of S. Hewlett, but said ditch “is not sufficient to carry the waters which naturally fall, flow, or accumulate on the lands of plaintiff.”

As conclusions of law, the court found that the levee o£

pression, or so-called watercourse, running through defendant’s and plaintiff’s lands, was a natural drainway for the water accumulating from rainfall on plaintiff’s lands, and that by constructing his levee across this swale, or drainway, the effect was to stop the flow of such water and to cause it to back over plaintiff’s land to his injury. Defendant constructed a canal, or ditch, along this levee its entire length, on his own land, which but for its defects would probably be ample to carry away the water ordinarily falling from the clouds and accumulating on plaintiff’s land; and if of sufficient capacity to carry this water, it is not claimed that the levee would injure plaintiff by reason of its being an obstruction to the passage of water ordinarily and usually accumulating on plaintiff’s land. The evidence is conflicting on the point, but we think it sufficient to support the finding that defendant’s said ditch had not capacity to carry the said waters at the time of the injury. Engineer Atherton, a witness for plaintiff, testified that its bottom was not brought down to an even and regular grade; that not far south of the point where the levee crosses the drainway the bottom of the ditch is a foot higher than' the bottom of the drainway, and at the southeast corner of defendant’s land, where the ditch turns west, thence connecting at a point on defendant’s west line with Hewlett’s ditch, the bottom is fourteen inches higher than the bottom of the drainway, and the grade of the ditch is towards the south. The capacity of this ditch, obviously, would be measured by its capacity at these points where its bottom is highest, or where the least water would pass in a given period of time. If there were no other question in the case we should have no difficulty in holding that the evidence justified the findings that the levee is an unwarranted obstruction, and will so continue to be until the ditch referred to is made of sufficient capacity to carry the water accumulating from rainfall on plaintiff’s land, and which is accustomed to flow down this drainway.

2. I do not think the evidence warrants the finding that the depression, or swale, referred to is a watercourse in contemplation of law. Several witnesses testified that it is a watercourse, and the court and jury so found. But whether it is a watercourse in legal contemplation must be determined as matter of law from the evidence in the ease.' The tes

timony of Engineer Atherton is, that he examined it carefully, and was able to trace and meander it for a distance1 of two and a half miles east of plaintiff’s lands and through defendant’s lands; that it varies in width from seventy-five to one hundred feet, averaging eighty feet, and has a depth varying from six inches to two and one-half feet; its general course is about parallel with Mormon Slough; its banks, if they can be so called, we learn from other witnesses, slope gently, as is obvious from the width and depth, and lose themselves in the surrounding land, and when water is not running the depression is cultivated to grain, the same as the other land of plaintiff and defendant, and a portion of the depression, on plaintiff’s land, is planted to vines; where it begins and where it ends does not appear, and there is no satisfactory evidence to show that it has any direct connection with Mormon Slough. The country around and about the lands of plaintiff and defendant is level, and all the land in the vicinity is subject to overflow occasionally from Mormon Slough, which is a branch of Calaveras River, and carries a large body of water. "When Mormon Slough overflows, which occurs occasionally at high-water periods, in the winter and spring months, its waters spread out generally over this region of country and inundate plaintiff’s and defendant’s lands in common with the lands of their neighbors, and this drainway fills up. The waters thus escaping from Mormon Slough run west and southwest, the slope of the country being slightly in that direction, and, after passing over the lands referred to, go on westward and find their way to the San Joaquin River or Mormon Slough, further to the westward. At such times this drainway, in common with the other land, is completely submerged. One of these overflows occurred in 1897, at which time plaintiff’s land was damaged, as found by the jury, and it was found also that the damage in part occurred from the water of the Mormon Slough, which, it is to be inferred, but was not shown by any evidence, was commingled with the water that had accumulated on plaintiff’s land from rainfall.

A watercourse is defined to be “a running stream of water; a natural stream, including rivers, creeks, runs, and rivulets.” (Black’s Law Dictionary, title “Watercourse.”) Further defining the term, this court said: “There must

customed to carry to relieve plaintiff’s lands. But defendant had the right to protect his land from the overflow waters of Mormon Slough by a levee. As a new trial must be granted, a question may arise as to defendant’s liability upon evidence showing that concurrently with the overflow of Mormon Slough there was a heavy rainfall, which latter was sufficient to tax the capacity of said waterway, it is perhaps enough to say that plaintiff can recover damage only by showing that when the injury occurred there was flowing in the waterway sufficient water to fill it, which had accumulated on his land. ■ Defendant may meet such evidence by showing that his ditch at that time had capacity to carry all the water the drainway would carry. ' To prevent any restraining order as to the future, defendant may show that he has since (if he had not at the trial) so constructed his ditch as to carry all water to the full capacity of the said drainway. This much may safely be said to result from the principles already decided by this court, to which reference has been made. The other questions raised by the appeal do not call for discussion in view of what has already been said.

The judgment and order should be reversed and a new trial ordered.

Cooper, C., and Haynes, C., concurred.

Por the reasons given in the foregoing opinion the judgment and order are reversed and a new trial ordered.

McFarland, J., Temple, J., Henshaw, J.