Conklin v. Goodson

MOORE, P. J.

Plaintiff appeals from a judgment denying her relief in an action for damages to real property.

Her home is on Lots 10, 11 and 12 of Tract 798 in the Hollywood Hills. Directly to the east of and adjacent to appellant’s land are Lots 45 and 46 which are contiguous with each other. To the east of Lots 45 and 46 is Lot P, about 30 feet in width and 534.38 feet long. As it approaches Lot 46, Lot P makes a turn southward, bounds Lots 45 and 46 on their easterly sides and at about 190 feet from a point opposite the southerly boundary line of Lot 11, it connects with Lot O which is also about 30 feet wide and lies generally in a westerly direction. Lots 45 and 46 are uphill from

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Lots 10, 11 and 12 and are immediately below a ridge at or about where Lot P adjoins Lot 46.

Appellant alleged that Lots 45 and 46 are not normally subject to the flow of water coursing down any slope or gully other than the natural rainfall on the slope of said ridge immediately above them; that prior to October, 1947, Lots O, P, Q and M were maintained as a narrow dirt trail through the hills; that defendants, owners of adjacent lands, then widened, graded and surfaced with asphaltum black top, Lots 0, P, Q and M in a negligent and wrongful manner and have continuously excavated the soil from said lots and deposited the same on the downhill slopes thereof, thereby widening the drainage-collecting area of said lots and blocking the normal course of water flowing down the slopes and gullies northerly and above the said Lots 45 and 46 and have so negligently constructed and maintained the road on said lots that the natural rainfall coming down the slopes and gullies above Lots 45. and 46 were and are collected upon the surface of said Lots M, Q and 0 and caused to course down the length thereof towards the point of the ridge directly above the property of plaintiff where Lot P adjoins Lots 45 and 46.

In paragraph V she alleges that “about January 17, 1952, during the course of a normal rainfall, rain waters were negligently and wrongfully collected as aforesaid on said Lot ‘P’ and debouched over the side or bank, where Lot ‘P’ adjoins Lots 45 and 46, down and across said last-mentioned lots and upon the property of plaintiff flooding her property and her home and garage with water, mud, silt and debris to plaintiff’s damage as follows: Undermining and destroying two retaining walls upon the slopes to the rear of plaintiff’s home, the landscaping of said hillside, flooding against the dwelling with mud and debris, breaking two screens and a window, filling a sleeping room with mud and debris, destroying the hardwood floor, the plaster and paint on the walls thereof, two heating radiators and the furniture and furnishings in said room and filling the entrance way to the garage and the dwelling with mud and debris.”