Rozewski v. Simpson

THE COURT.

This is an appeal by plaintiffs from a judgment entered in an action to recover damages for the flooding of their land. The verdict of the jury was for defendant J. J. Simpson.

In 1932 and 1933 plaintiffs and defendants were in possession of adjoining tracts of land in Yuba County. Plaintiffs held their property under a contract of purchase, a forty-acre tract which they had improved and were operating as a dairy farm. The adjoining tract of five hundred acres, in possession of defendant J. J. Simpson, as lessee, was largely farmed to rice and was irrigated and flooded during the rice season with water imported from an outside source.

Plaintiffs charged that in August and September, 1932, and again in September, 1933, defendants “wilfully, negligently and carelessly caused water to be diverted from their said land onto, overflowing and flooding the land of plaintiffs” and carelessly allowed the water to remain upon the land of plaintiffs for a period of about eight days until the same became stagnant, menacing the health of plaintiffs and their family, causing the air to become foul, dairy cows to become diseased from drinking stagnant water, crops to be destroyed

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and other damage, in the sum of $5,475. They also prayed for an injunction to enjoin such flooding in future. Defendants set up in their answer as a special defense that their lands were enclosed by levees designed for the purpose of protecting plaintiffs’ premises, and for keeping them from being flooded by water used in the growing of rice, but that plaintiffs had made various cuts and openings in said levees before any flooding of plaintiffs’ lands and obtained water therefrom without the knowledge or consent of defendants, and that plaintiffs were so negligent in the maintenance, operation and control of the cuts and openings that their lands were flooded.

The lease of defendant J. J. Simpson was not renewed in 1934 and therefore the issue of injunction was dispensed with. Plaintiffs dismissed the action against all defendants except J. J. Simpson, and the case went to the jury on the question of liability for damages alone. After denial of their motion for a new trial plaintiffs prosecuted this appeal.

The evidence was conflicting as to the cause of the overflowing of the rice water in 1932. In that year defendant had a border check, or levee, along the southern border of his land, which lay to the north of plaintiffs’ land, this levee being between the two properties, it having been constructed by defendant to prevent water from flowing onto plaintiffs’ land during the time defendant was draining the rice lands. The evidence showed that during this year and at various times prior to the release of the rice waters by defendant, plaintiff Karl Rozewski cut holes in this border check and took water from defendants’ land onto his own for the purpose of irrigating his lands. One of defendant’s sons testified: “In 1932, we was draining the water off the rice field to let the rice get a start and that is when he (Karl Rozewski) came and asked me if he could have some of that water because his ditch wasn’t fixed to get water and if he could take that water he wouldn’t have to pay for it.” This witness tol,d plaintiff he could have such water as he needed, as it was only spill water anyway. Defendant produced evidence to show such damage as resulted in this year was caused by water flowing onto plaintiffs’ land by the openings plaintiff Karl Rozewski had made. One witness testified that in 1932 a little water might have got on plaintiffs’ land from the draining but that it was not enough “to hurt anything”, and also that Karl Rozewski did not complain to defendants about