Brian v. Ivey

WARNE, J. pro tem.

*

Plaintiff brought this action against defendant to recover damages allegedly caused by the negligent flooding of plaintiff’s rice lands in the year 1954. The court sitting without a jury rendered judgment in favor of defendant, and plaintiff has appealed.

It appears from the record that one Luchetti and the defendant, Dr. Ivey, owned adjoining property, and that prior to 1953 neither property was devoted to agricultural use. An artificial lake for duck hunting was created each fall on the Ivey property and then allowed to dry up after the duck season. Water from the Glenn-Colusa Irrigation Ditch was diverted at the south side of the Luchetti property; then it flowed through a short ditch known as the “Ivey Ditch” from the northern end thereof openly onto and over the Luchetti property to the extent that it became practically flooded and by gravity it then flowed northerly over and onto the Ivey property, where it formed a lake. This arrangement was set forth in a former written easement binding upon Luchetti when the properties were acquired.

In 1952 Luchetti leased the land to plaintiff Brian for a period of three years to grow rice.

In order that plaintiff Brian might grow rice on the leased property, Luchetti, with defendant’s consent, had a dragline ditch constructed through which defendant could get water for his duck lake without having to flood the leased property. However, in 1953 seepage and overflow from the ditch rúined plaintiff’s rice crop and he recovered damages from the

[465]

defendant therefor.

(Brian

v.

Ivey,

150 Cal.App.2d 691 [310 P.2d 492].)

Plaintiff contends that, as a matter of law, defendant was negligent; that the prior judgment is res judicata as to the defendant’s liability; and that as a matter of principle the judgment herein should be made to conform to the former judgment. None of these contentions is meritorious as the factual situation in 1953 was materially different from that in 1954.