Fredericks v. Fredericks

ADAMS, P. J.

This is an appeal on the judgment roll alone, from a judgment in favor of plaintiff in an action to enjoin defendants from causing the flow and seepage of water from their land onto the land of plaintiff.

The findings of the trail court show that prior to June 2,

[243]

1936, the lands of both plaintiff and defendants were owned by one George S. Fredericks and his brother, defendant Harry L. Fredericks, as tenants in common. The land was partitioned, George retaining title to the portion subsequently acquired by plaintiff, and Harry taking the portion now held by defendants. George, at the time of the partition, granted to Harry a “right of way for an irrigating ditch” across George’s land. In 1949 plaintiff had growing on her land 20 acres of almond trees approximately nine years old, and 20 acres of zinfandel grape vines. Defendants in that year planted their land to rice and, in order to irrigate same, diverted through the canal across plaintiff’s land large quantities of water which were then held on said land by means of levees so that it stood several inches above the natural level of plaintiff’s lands. A large portion of said waters seeped onto plaintiff’s land and raised the water level thereunder to such an extent as to injure plaintiff’s almond trees and grape vines, a continuance of which condition would cause said trees and vines to die, and would cause plaintiff irreparable damage. Crops of rice had previously been grown on defendants’ land in 1919 and 1929, but for the most part said land had been dry farmed for the past 30 years. At the time of the granting of the right-of-way to defendants there was no understanding that the ditch was to be used for irrigation of rice crops, or that the soil of plaintiff’s land was of such a loose texture that water stored on defendants’ land would seep onto plaintiff’s land. Defendants, without injury to plaintiff’s land, can irrigate their land for all normal agricultural purposes except rice culture, if they do not use a flow of more than 4 cubic feet per second, for more than three days in any 30-day period. The seepage which caused damage to plaintiff’s land was not from the canal but directly from defendants’ rice field.

The trial court further found that defendants would, unless restrained, continue to flood their rice land to an extent that would cause damage to plaintiff’s land; and it entered judgment enjoining defendants from diverting water to their land either through the canal “or elsewhere ... at a rate greater than four (4) cubic feet per second and such rate of flow may only be continued for three (3) days in any thirty day period, and the said defendants will be permanently enjoined from applying water for irrigation, regulation, storage or other purposes to any area of said tract in excess of six (6) acre inches depth for more than three (3)