Marment v. Castlewood Country Club

Opinion

DRAPER, P. J.

This appeal concerns the liability of an upper owner to lower owners for damages allegedly resulting from diversion of surface waters. In November 1966, defendants installed a drainage system which picked up both surface and sub-surface water, and deposited it at the edge of plaintiffs’ property. Shortly thereafter, land of plaintiffs began to slip, the movement ultimately resulting in substantial, if not total, loss of plaintiffs’ homes. Jury verdict was for defendants, and plaintiffs appeal from the judgment entered upon the verdict.

The issue on appeal is the propriety of the court’s instructions upon the rights and duties of upper and lower landowners. There was a conflict of expert testimony as to the cause of the slippage of plaintiffs’ land. Plaintiffs’ expert testified that it was due solely to incursion of water. Defendants’ expert felt that it was due to movement along the Calaveras fault, wholly unrelated to water movement. But since there were no special verdicts, we cannot assume that the verict is based upon the issue of proximate cause. It is therefore necessaiy to determine the propriety of the instructions upon diversion of surface flow of water.

[485]

A 1966 decision

(Keys

v.

Romley,

64 Cal.2d 396 [50 Cal.Rptr. 273, 412 P.2d 529]) reviews in detail the development of the law, in this state and other jurisdictions, upon the rights and duties of upper and lower landowners when the former diverts the flow of surface waters so as to cause them to be discharged upon the lower land in greater quantity or in a different manner than would occur under natural conditions.

Keys

points out that California until then had followed the civil law rule, which imposed liability quite strictly upon one who interfered with the natural flow of water so as to cause an invasion of another’s use and enjoyment of his land, although the strict rule had been somewhat modified in particular fact situations. But the civil law rule appeared unnecessarily rigid. Hence the Supreme Court determined that the true doctrine derives from the law of torts, rather than that of property. It announced the correct rule to be that each owner must “take reasonable care in using his own property,” i.e., “[n]o party . . . may act arbitrarily and unreasonably in his relations with other landowners. . . .” Thus the upper owner must act reasonably to avoid, and the lower owner to protect against, injury to the lower land through diversion of the flow of water. If both act reasonably, then the upper owner is liable