Reclamation Dist. No. 833 v. Am. Farms Co.

Appeal by the plaintiffs from a judgment for the defendant in an action to enjoin the drainage of water from the defendant’s rice lands through the canals and drainage ditches and over the easements of the plaintiffs.

The plaintiff Reclamation District No. 833 withdrew from the action after its commencement and the action was thereafter prosecuted by the plaintiffs Drainage District No. 100 of Butte County and Butte Creek Drainage District, both of which are duly created, and existing drainage districts under the laws of the state of California. (Stats. 1903, p. 291, as amended; Stats. 1885, p. 204, as amended.) When the word “plaintiffs” is used herein it will refer to the two drainage districts participating in the trial.

.The defendant owns land comprising about 2,200 acres in Butte County, situated generally easterly from the lands of the plaintiffs and about fourteen miles northeasterly from Butte basin, but which is not included in any drainage or reclamation district. Several natural waterways, which are normally dry during the late summer months and until the winter rains, have their courses through the defendant’s lands and join Cherokee canal at a point about 200 feet below the defendant’s southerly boundary. From about that point the Cherokee canal runs in a straight line southwesterly toward Butte Creek and Butte basin. It is conceded that the canal has existed for so many years, at least since the eighties, that for the purposes of this controversy it may be considered to be a natural watercourse (see San Gabriel V. C. Club v. County of Los Angeles, 182 Cal. 392 , 397 [ 9 A. L. R. 1200 , 188 Pac. 554 ]), and it is not questioned that its waters flow into Butte Creek at a point above Butte basin.

Rice culture is a comparatively recent' agriculture development in the state of California. Prior to the time when it was commenced in the region involved in this controversy, Butte basin, which each year during the rainy season became flooded by the overflow of water from Butte Creek, had no continuous outlet to the Sacramento River. Except for evaporation and seepage the waters remained in the basin until the increased flow from Butte Creek in the winter season raised the water table so that the waters flowed over the rim of the basin into Butte slough, which carried them to the Sacramento River. No complaint was made by the land owners growing various crops on lands in and bordering the basin until rice was produced on such a scale that the drainage of the irrigation waters from the

At the time of the former litigation above referred to the defendant was not engaged in the production of rice except in small quantities in 1915 and 1917 and was not a defendant in any of the proceedings nor was its land included within any drainage district. Beginning in the year 1921 the defendant has each year produced rice on a larger scale, ranging in amount from 300 to 675 acres, and intends to continue the production of rice on its land to which, according to the evidence, it is best suited, because, like the other land, in that region devoted to rice culture, the subsurface is an impervious stratum of hard-pan. For the purpose of irrigating its rice-fields the defendant has drilled eight deep wells from which, by means of pumps, it has developed a flow of from 1600 to 1900 gallons a minute for each well. In the rotation of its acreage the defendant operates the number of wells, usually two or three, necessary to irrigate the particular portion of its acreage which in that year is planted to rice.

The trial court found that “the portion of said water which is not consumed in such irrigation is drained upon defendant’s said land into natural and ancient watercourses only to the extent necessary in the proper, reasonable and careful irrigation of said land, and without flowage or seepage upon any property of plaintiffs and without seepage or flowage out of the natural channels of said ancient watercourses”; that there is no evidence that any of the waters drained from the defendant’s lands “ever reached any of the

The main contention of the appellants is that the findings of the court are unsupported by and are contrary to the evidence.

There was no direct oral evidence that any of the water drained into the natural watercourses on the defendant’s land ever reached the works of the plaintiffs. The reason for this lack of proof is obvious because of the commingling of such drainage waters with like waters of other rice growers farther down the canal and the impossibility of identifying one flow of water from another. The most that could be said by the experts produced on behalf of the plaintiffs was that they “believed” or were of the “opinion” that some of the defendant’s drainage water found its way to the plaintiffs’ works fifteen or more miles below. This opinion evidence was necessarily based on physical facts. That is to say, if it was shown that more water was turned into the watercourses on the defendant’s land than could seep away or evaporate before it reached the plaintiffs’ works and there was no other outlet, the conclusion based on the law of nature would be that the defendant’s drainage water passed to and through the plaintiffs’ works. The finding of the court that there was no evidence that any of the waters drained from the defendant’s land “ever reached any of the canals, works or easements of the plaintiffs” would seem, therefore, to be contrary to the physical facts. But as bearing upon the plaintiffs’ right to an injunction, this finding must be considered in conjunction with the further finding, conclusively established by the evidence, that such drainage waters could reach the plaintiffs’

It is well settled that one who contributes to a damage cannot escape liability because his proportional contribution to the result may not be accurately measured. (Learned v. Castle, 78 Cal. 454 [ 18 Pac. 872 , 21 Pac. 11 ] ; People v. Gold Run D. & M. Co., 66 Cal. 138 [ 56 Am. Rep. 80 , 4 Pac. 1152 ].) But before an injunction be authorized some damage must be shown, and the finding of the court that there is no evidence showing that the defendant’s drainage water has in any way damaged the plaintiffs’ works or property is supported by the record. It is claimed, however, that a continued and increased use by the defendant of said natural watercourses for drainage purposes will so overtax and burden the plaintiffs’ properties that there will be a recurrence of the flooding in and injuries to the basin lands for which, under its contracts and the previous injunctive order of the Superior Court of Colusa County, the plaintiffs will be liable. However, no showing is made that any such increase in rice production in this region by which such an increase in the quantity of waters flowing into the basin would be provoked is contemplated or threatened either by the defendant or any other growers of rice. In the absence of any such showing, to which the defendant may be found to be a threatening factor, we think the plaintiffs cannot be said to have established a right to injunctive relief. [5] The maxim sio utere tuo ut alienum non laedas, which is incorporated in the statute law of this state (Civ. Code, sec. 3514; see Green v. General Petroleum Corp., 205 Cal. 328 , [ 60 A. L. R. 475 , 270 Pac. 952 ]), implies that one may make any use which he pleases of his own so long as he does not injure others. (Galbreath v. Hopkins, 159 Cal. 297 [ 113 Pac. 174 ].)

We deem it unnecessary to enter upon a discussion of the principles relating to trespass, negligence or nuisance.' Upon any theory it is clear that as between the parties to this controversy the defendant, in the reasonable enjoyment of its own land, may use the natural-waterways on its property as a conduit for the discharge of the rice drainage waters. (See 26 Cal. Jur., p. 143, and cases cited.) That some of those waters may pass through or over the works of

The plaintiffs are not entitled to injunctive relief on the theory that the defendant’s use of its works may ripen into an easement. The plaintiffs are public corporations and private rights may not be acquired by prescription in or to property owned by them which is devoted to a public use. (Central Pacific Co. v. Droge, 171 Cal. 32 , 40 [ 151 Pac. 663 ] ; Patton v. City of Los Angeles, 169 Cal. 521 [ 147 Pac. 141 ]; County of Placer v. Lake Tahoe Ry. Co., 58 Cal. App. 764 , 783 [ 209 Pac. 900 ] ; Marlin v. City of Stockton, 39 Cal. App. 552 [ 179 Pac. 894 ].)

The trial court’s finding that there was no evidence of actual or threatened injury is sustained by the evidence and fully supports the judgment herein.

The judgment is affirmed.

Richards, J., Seawell, J., Curtis, J., Langdon, J., and Preston, J., concurred.

Rehearing denied.

All the Justices concurred.