Bacigalupi v. Bagshaw

DOOLING, J.

Plaintiff and appellant owns a home in Tiburón. This action was brought by him against the county of Marin and respondent Bagshaw as the member of the board of supervisors of that county having supervision of and responsibility for road work and surface water drainage improvements in the supervisorial district wherein Tiburón is located upon the claim that appellant’s property was damaged by flood or storm waters diverted onto his property by certain drainage works installed by the respondent county. The first cause of action against both defendants was based, as to the county on the Public Liability Act of 1923 (Stats. 1923, p. 675; 2 Deering’s Gen. Laws, Act 5619), and as to Bagshaw on section 1953, Government Code. The second cause of action was against the county alone on the theory of damage to private property for public use. (Cal. Const., art. I, §14.)

The evidence shows- that on December 22, 1945, surface waters were discharged onto appellant’s property resulting in substantial damage. This property fronts on the south side of Mar East Road. Tiburón in this area slopes rather precipitately from north to south. Above Mar East Road is a road knpwn.as Tiburón, Bpuleyard- and cpnnecting Mar East Road

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with Tiburón Boulevard from the west is a road known as Mar Centro Drive. The land slopes steeply from Tiburón Boulevard to Mar East Boad and Mar Centro Drive also slopes toward Mar East Road. The portion of Mar East Road easterly of its intersection with Mar Centro Drive is a public road but not a part of the county highway system. Tiburón Boulevard and Mar Centro Drive are both county roads. Immediately to the west of appellant’s property, but not impinging upon it, is a canyon or swale which in the absence of any artificial works would be a natural watercourse during rainy weather. The comity has constructed a number of flumes and ditches in the vicinity which will be more particularly described hereafter. On the night of December 22, 1945, there was a heavy rainfall and mud and water ran onto appellant’s property and into his house causing the damage complained of. Investigation proved that a culvert across a short extension of roadway between Mar East Road and Mar Centro Drive, designated at the trial as culvert No. 2, had become stopped up and the water which would otherwise have run through it down the canyon or swale to the west of appellant’s property was running over the road and onto appellant’s land.