Haynes v. Indio Levee District

This is an appeal from a judgment of dismissal of the action as to Charlotte M. Price, one of the defendants. The order of dismissal was made upon plaintiffs’ refusal to amend after demurrer sustained to plaintiffs’ second amended complaint.

The facts set out in the second amended complaint are substantially as follows: That the defendant Indio Levee District, a regularly organized levee district under the laws of the state of California, by its trustees, constructed a dam across the natural channel of White Water River, a natural waterway, and also above this dam cut a new channel through a natural ridge which intervened between the course of the river and the lands of the plaintiffs, and which always theretofore had protected such lands from the flood waters as well as the ordinary flow of said river, and that the construction of this dam and the cut or channel through the intervening ridge turned the waters of the river, particularly in seasons of high water, into this new channel and upon and over the lands of plaintiffs, to their great damage. The dam and cut in question are situated upon the land of

[1] We think it is obvious that Charlotte M. Price is a necessary party to this action, if it can be maintained at all, by reason of the fact that the relief sought could only be obtained by requiring and permitting the Indio Levee District to enter upon her land to perform the work of restoration demanded. Hence, the only question to consider is whether or not the complaint states a cause of action against the levee district. We think it does.

[2] It is alleged in the complaint that the diverting of the waters of the river from their natural channel was not done in pursuance “of any plan or improvement adopted by the said Indio Levee District” or its trustees, and that the diversion “is unlawful and wholly without right.” As against a general demurrer, this, we think, is a sufficient allegation, if such was needed, to negative any presumption that the work had been done in pursuance of any legal authorization therefor. [3] We know of no authority vested in a levee district, or any other municipal or g-itosi-mumcipal corporation, to change the natural channel of a watercourse so as to turn the floods upon adjacent property not naturally subject to its flow, without some express authority of law or of legal procedure; and, even then, the injured party must have his “day in court.” (Conniff v. San Francisco, 67 Cal. 45 , [ 7 Pac. 41 ] ; Cloverdale v. Smith, 128 Cal. 230 , [ 60 Pac. 851 ]; Larrabee v. Cloverdale, 131 Cal. 96 , [ 63 Pac. 143 ]; Heier v. Krull, 160 Cal. 441 , 445, [ 117 Pac. 530 ].) [4] A trespass, irreparable in character and of a continuing nature, such as is alleged in the complaint before us, may be restrained by a mandatory injunction, thus restoring things to their natural and original condition. (Allen v. Stowell, 145 Cal. 666 , [ 104 Am. St. Rep. 80 , 68 L. R. A. 223 , 79 Pac. 371 ]; Rudel v. County of Los Angeles, 118 Cal. 281 ; [ 50 Pac. 400 ]; Geurkink v. City of Petaluma, 112 Cal. 306 , [ 44 Pac. 570 ]; Island Rec. Dist. v. Floribel Alfalfa Syn

Respondent Price offers no argument against the doctrines stated. Indeed, the only point urged in respondent’s brief against the sufficiency of the complaint is that the facts pleaded show an estoppel to maintain the action by reason of laches on the part of plaintiffs in protesting against the acts complained of. Stated in respondent’s own words, her contention is that, “admitting the allegations of the second amended complaint to be true, yet appellants are not entitled to the mandatory injunction they seek, since they have stood by while the development was made for public use, and have suffered it to proceed at large expense to successful operation, having reasonable cause to believe it would affect their own property, and have allowed this respondent to acquire certain property rights, depending upon said improvement remaining permanent.” For the purposes of this appeal we must not only admit the allegations of the complaint to be the truth, but the whole truth. In other words, we cannot, on considering the sufficiency of the complaint, infer or presume the existence of facts not pleaded. And we are unable to find in the complaint the basis for respondent’s assertion that the work complained of was for public use, or that it was prosecuted at great expense, or that the property rights of the defendants would be greatly affected by plaintiffs’ delay in commencing action. It is shown by the complaint that the dam and excavation work was done in the spring and summer of 1915, that the damage complained of occurred in January and February of 1916, and that the

The judgment of dismissal as to the defendant Price is reversed and the order sustaining demurrer set aside.

Finlayson, P. J., and Thomas, J., concurred.