Provident Irrigation District v. Cecil

VAN DYKE, P. J.

In this action two owners of land within an irrigation district joined with the district in an action brought to obtain mandatory and prohibitory injunctions against defendants, who also owned land within the district.

Responsive to the pleadings, the trial court found the following : Provident Irrigation District is and at all times mentioned in the complaint was an irrigation district organized by virtue of law. The north boundary of defendants’ land was the south boundary of Garriere’s land and his north line in turn was the south line of Lambert’s. The lands of the three owners sloped from north to south and had been drained by two wide and shallow natural channels coursing through the Lambert and Garriere properties and onto and across the lands of defendants. These drains in a state of nature accommodated the flow of rain and surface waters brought to or falling upon the lands within their drainage areas. These drains converged at a point in the northerly portion of the defendants’ lands and led thence southerly until their waters emptied into Willow Creek, a well-defined and natural channel. For more than five years before this action was begun the three plaintiffs, with their predecessors in interest, had continually, openly, notoriously, adversely and under claim of right, used, improved and maintained the said drains and through them had drained the summer runoff of excess irrigation water and waste water from the Lambert and Garriere lands and from lands lying north of them. In order to carry out the duties imposed upon it by law to provide drainage for land within its boundaries the district had cleaned and dredged the channels of the drains and in particular in the years 1939, 1942 and 1945 had caused them to be dug to a level of 82.6 feet S.V.I. Co. datum at their junction with Willow Creek and from that level, at that point, had caused the drains to be dug out and maintained to constant hydraulic grade northerly across the lands of defendants and of Garriere and Lambert. The channels of these natural drains had been so improved by the district, and had been, for more than five years, used by the district for the aforesaid purposes. In December of 1948 the defendants constructed a levee or dike along the northerly boundary

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of their lands and across the drains and thereafter had so leveled and planed their land as to fill in the drains. The levee which the defendants so erected made no provision for escape of waters flowing in the drains. But after this action was begun, the defendants made an insufficient opening in the levee and constructed a toe ditch along it to combine both drains. The defendants merged the two channels at a point where the most westerly thereof entered their lands and from that point, after action was begun, defendants had constructed a new channel for the combined drains leading in a more direct route across their, lands and into Willow Creek. However, the toe drain, the opening through the levee for the combined drains, and the channel made to carry the water to Willow Creek were insufficient both as to cross section and depth to accommodate the usual flow of waters and were not on a hydraulic grade. The result was that the waters were impeded and prevented from flowing across defendants’ lands as they had theretofore done. This hindrance in flow prevented the accustomed movement of both summer irrigation water and the normal high winter water having its source from rainfall on the lands within the area so that the waters were backed up and impounded. On the lands of Garriere the result was substantial damage to his lands, and to crops planted thereon. The waters so impeded were not flood waters, although often flood waters inundated and covered all of the lands in question. These floods, however, were temporary. The lands soon emerged and the waters returned to the natural channels from which the overflow came. A cash judgment was awarded Garriere. Judgment was given the plaintiffs in substance as follows: The court ordered defendants “to forthwith provide, dig, and deepen the channels for drains 27 and 27a [being the two drains heretofore discussed] across the hereinafter described land of defendants, to a condition, width, grade and depth, and remove that portion of the levee or dyke constructed by defendants . . . across the northerly boundary of the said hereinafter described land of defendants to the extent necessary so that said drains and openings in said levee will provide drainage equal to and of a capacity equal to that of drains 27 and 27a as they existed immediately prior to the acts of defendants in filling in and damming off said drains; ...” The defendants were further ordered generally to provide sufficient facilities to receive and transport across their lands “the surface waters naturally and normally flowing through