Turner v. Hopper

MARKS, J.

This is an appeal from a judgment which enjoined defendants from interfering with the free passage of rain and surface waters from plaintiffs’ property flowing across defendants’ property, and required defendants to remove a “fill-in and dam” located on their property.

The evidence in this case is not conflicting. The precise problem presented does not seem to have been decided in the exact form appearing here in any California decision to which our attention has been directed.

Plaintiffs are the owners of 8 acres of land lying east of Verano Road in Orange County, and defendants own 5 acres on the west side of that road. The north line of defendants’ property is about 50 feet north of the southwest corner of plaintiffs’ land. One Conkle owned the land immediately south of and adjoining plaintiffs’ property.

The natural drainage of the land is slightly south of west so that the surface waters on plaintiffs’ land originally would drain across part of defendants’ property.

At least since a severe flood breaking out of the Santa Ana River in 1916, there has been a swale running across the southerly portion of plaintiffs’ and the northerly portion of the Conkle property and extending westerly across defendants’ land which drained the surface waters westerly so that they finally reached the Pacific Ocean. The drainage area is relatively small. Prior to the operations we will detail, the swale was described as about 250 feet wide and not over 4 feet in depth.

Verano Road extends north and south and separates the properties and some years ago was improved so that its grade was raised in crossing the swale. To permit the passage of surface waters from east to west two 12-inch pipes were placed under the road, presumably in or near the lowest portion of the swale as it then existed. The westerly fall of

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the country is gentle so that during heavy rains the water formed a pond on plaintiffs’ and Conkle’s properties before it drained through the pipes and across defendants’ land.

Early in 1943, plaintiffs leveled their land and filled the swale to the grade of the surrounding land, but leaving a ditch about 20 feet wide and about 4 feet deep adjoining and north of their south line. Conkle filled his property to his north line. Thus a ditch was left along what had formerly been the lowest part of the swale which was otherwise closed by the leveling operations. Defendants leveled their property completely filling the swale by raising the ground to the approximate level of the adjoining land. This cut off the natural drainage of surface waters from plaintiffs’ property across defendants’ land to the injury of plaintiffs by causing water to pond along and on their property.